JUDGMENT Opposite party no. 1 filed a suit for specific performance of a written contract for sale against Sushilabala Dassi, since deceased, and opposite party No.2, and obtained a decree in that suit. Sushilabala Dassi, the original Defendant no. 1, preferred an appeal before the learned District Judge, Alipore, with an application for leave to appeal in forma-pauperis which was granted and the appeal was registered as Title Appeal No. 1009 of 1971. The petitioner, being her full sister and sole heiress, filed an application for substitution in her place in the appeal on May 25, 1972, and the same was allowed on the same date. The opposite party no. 1 filed objection against the order of substitution and upon hearing the said objection was rejected and the order allowing substitution was retained by the lower Appellate Court. On September 21, 1972, the opposite party no. 1 moved the lower Appellate Court for a direction upon the petitioner to pay court fees upon valuation of the appeal and upon that the lower Appellate Court directed the petitioner to pay ad-valorem Court fees on the valuation of the appeal. On January 10, 1973, the petitioner filed an application purported to be one under Section 151 and Order 44 Rule 1 of the Code of Civil Procedure before the lower Appellate Court for leave to prosecute and/or continue the appeal in forma pauperis without payment of Court-fees. The said application was registered as Misc. Case No.2 of 1973 in the 4th Court of Additional District Judge, Alipore. The opposite party no. 1 put an objection against the petitioner's said prayer made on January 10, 1973. Upon evidence the lower Appellate Court found that the petitioner was a pauper within the meaning of Order 33, Rule 1 of the Code of Civil Procedure, but the learned Additional District Judge ultimately rejected the application holding that it was barred by limitation inasmuch as it was filed beyond 30 days from the date of substitution and also beyond 30 days from the date of death of the original appellant. The petitioner then filed an application for review of the said order out it was also rejected, after hearing both parties holding, interalia, that Article 130 and not Article 137 of the Limitation Act was applicable to the case and that there was no error of law. The petitioner then filed an application for review of the said order out it was also rejected, after hearing both parties holding, interalia, that Article 130 and not Article 137 of the Limitation Act was applicable to the case and that there was no error of law. Accordingly, the application for review was held to be misconceived. 2. The propriety of the above decisions bas been challenged in revision and on behalf of the petitioner Mr. Sudhis Das Gupta submitted that the impugned orders were bad, illegal and without jurisdiction. He, further, submitted that in any event the application to continue the appeal in forms pauperis was essentially an application under section 151 of the Code of Civil Procedure and as such residuary article 137 of the Limitation Act would apply in such a case, if any question of limitation in this regard arises at all. 3. Mr. Shyama Prasanna Roy Chowdhury, learned Advocate appearing on behalf of the opposite party No.1, however, joined issue and be submitted that there was no scope for any application of the residuary Article 137 of the Limitation Act when limitation for any application purported to be one under Order 44, rule 1 of the Code of Civil Procedure is governed by Art. 130 of the Limitation Act. His other submission was that even assuming that the view taken by the lower Appellate Court was erroneous on a question of law, that would not be any ground for interference in revision. 4. Certain facts are undisputed. It is undisputed tint Sushilabala Dassi filed the appeal, being Title Appeal No. 1009 of 1971 and on her application for leave to appeal in forma pauperis, she was permitted so to do. Her death took place admittedly after she had been adjudged a pauper and leave to appeal as a pauper had been granted. It is further undisputed that the present petitioner substituted herself in place of the deceased appellant Sushila Bala Dassi within the period of limitation. The petitioner filed an application on January 10, 1973, purporting to be an application under section 151 and Order 44 Rule 1 of the Code of Civil Procedure to continue the appeal as a pauper without payment of Court-fees. In the enquiry relating to her alleged pauperism the finding of the tower appellate Court was in favour of the petitioner. The petitioner filed an application on January 10, 1973, purporting to be an application under section 151 and Order 44 Rule 1 of the Code of Civil Procedure to continue the appeal as a pauper without payment of Court-fees. In the enquiry relating to her alleged pauperism the finding of the tower appellate Court was in favour of the petitioner. The lower Appellate Court, however, rejected her application for the leave to continue the appeal as a pauper on the ground of limitation and the subsequent prayer for review of the said order was also rejected on the ground that there was no error of law on the question of limitation and the application for review was mis-conceived. 5. The question that now arises is whether there was exercise of jurisdiction not Vested in the Court or there was any irregularity or illegal exercise of jurisdiction vested in it or illegal assumption of jurisdiction not vested in it so as to be maintainable as a revisional application before this Court for necessary interference. In the view which I take on the matter there is no question of limitation at all. So evidently there was illegal assumption of jurisdiction not vested in the Court as also there was failure to exercise jurisdiction vested in the Court inasmuch as the Court of Appeal below failed to note that seeking permission to continue the appeal as a pauper could not possibly be within the terms of Order 44, rule 1 of the Code of Civil Procedure. All that was necessary for the applicant was to ask for an opportunity from the Court to continue the appeal as a pauper after she had been substituted in place of the original appellant who had previously obtained leave of the court to appeal in forma pauperis but died sometime thereafter. 6. I now proceed to discuss the question in greater details, The Supreme Court observed in (1) AIR 1964 SC at page 1336 that under Section 3 of the Limitation Act, it is the duty of the Court not to proceed with the application if it is made beyond the period of limitation prescribed. 6. I now proceed to discuss the question in greater details, The Supreme Court observed in (1) AIR 1964 SC at page 1336 that under Section 3 of the Limitation Act, it is the duty of the Court not to proceed with the application if it is made beyond the period of limitation prescribed. the Court had no choice and if in construing the necessary provision of the Limitation Act determining which provision of the Limitation Act applied, the Subordinate Court carne to an erroneous decision it would be open to the High Court in revision to interfere with that conclusion, as such conclusion must be held to have led the court to assume or not to assume jurisdiction to proceed with the determination of that matter. In the case reported in (2) AIR 1949 at page 239 (Privy Council), it was held that the erroneous decision on the question of limitation or res judicata involves necessarily question of jurisdiction and as such it involves vesting the Court the jurisdiction which in law it does not possess. In such a case the High Court had the power to interfere in revision to prevent such a result. Accordingly, I have no manner of doubt or hesitation to hold that the revisional application is maintainable. 7. I then proceed to discuss the merits of the question raised in the present revisional application. Mr. Roy Chowdhury, learned Advocate, appearing for opposite party No. 1 relied upon a Calcutta decision reported in (3) ILR (Vol. 1) Cal 1953 page 131 to contend that the application of Sushilabala seeking leave to appeal as a pauper lapsed on her death as it was her personal right to make an application for the purpose, and the said application is not available to the legal representative has to seek leave afresh by application within the meaning of Order 44 rule 1 of the Code of Civil Procedure and :he limitation for such an application cannot be avoided by saying that a simple application purported to be one under Section 151 of the Code of Civil Procedure would suffice. In elaborating this submission Mr. In elaborating this submission Mr. Roy Chowdhury contended that the appeal no doubt was alive but since the original application for leave to appeal had lapsed, a fresh application for leave to appeal as a pauper would be necessary and such application was only contemplated under Order 44, rule 1 of the Code of Civil Procedure and the limitation for such an application under Article 130 of the Limitation Act is 30 days from the date of the decree as otherwise the legal representative who was undoubtedly entitled to be brought on record in place of the original appellant would get a longer period than what was available to the original appellant while she applied for leave to appeal in forma pauperis and any other construction would have a far reaching effect and lead to absurdities. This contention of Mr. Roy Chowdhury does not appear to have any sound logic. On the date of death of the original appellant, her legal representative, namely, the petitioner, had a right to get herself substituted in place of the original appellant and she was further entitled either to proceed which the appeal on payment of Court-fees or it she was a pauper she could continue the appeal as a pauper on proof of her pauperism within the meaning of Order 33 rule 1 of the Code of Civil Procedure. All that is necessary for such a legal representative like the petitioner who brought herself on record within the period of limitation was to move the lower Appellate Court with a formal application to give her an opportunity to continue the appeal as a pauper on proof of her pauperism. Such an application is not contemplated within the terms laid down in Order 44 Rule 1 of the Code of Civil Procedure. The very language of Order 44 Rule 1 of the Code of Civil Procedure indicates only the initiation of the appeal in forma pauperis and it does not contemplate any further submission of any application by the legal representative of the appellant who had previously initiated the appeal. The contention or Mr. Roy Chowdhury that a fresh application under Order 44 rule 1 of the Code of Civil Procedure would be necessary therefore appear to be wholly unsound. The decision reported in (3) ILR 1953 (Vol. The contention or Mr. Roy Chowdhury that a fresh application under Order 44 rule 1 of the Code of Civil Procedure would be necessary therefore appear to be wholly unsound. The decision reported in (3) ILR 1953 (Vol. 1) Calcutta at page 133 is on altogether different fact and does not seem to be applicable to the instant case. In that case the conflict between two series of judicial decisions of our Court which related entirely to an order of dismissal of a pauper application under Order 22 Rule 7 (3) of the Code was resolved by holding that when the Code itself did not purport to provide for meeting the case of a legal representative before any order is passed on the application for permission to proceed with the suit as a pauper a rule had to be evolved from good sense and reason and such a rule had to be evolved to wriggle out the matter from the difficulty caused by incorporation of a rule like rule 15 of order 33 of the Code of Civil Procedure. 8. The lower Appellate Court relied upon the case reported in (4) AIR 1971 Rajasthan at page 234 to reach its conclusion that Article 130 of the Limitation Act was the Article which would be applicable to the present case. To my mind that case cannot have any manner of application in the instant case inasmuch as in that case the appellant sought leave to appeal in forma pauperis at the appeal stage and there was no question of meeting the case of legal representative who comes and bring herself on record after the death of the original appellant who had been granted leave to file appeal in forma pauperis. 9. Order 33 of the Code of Civil Procedure would also apply in connection with appeals as the appeal is a continuation of the suit. It has been held in a number of decisions that the right to sue in forma pauperis is one personal to the applicant and it cannot survive to the legal representative. 9. Order 33 of the Code of Civil Procedure would also apply in connection with appeals as the appeal is a continuation of the suit. It has been held in a number of decisions that the right to sue in forma pauperis is one personal to the applicant and it cannot survive to the legal representative. But in quite a good number of cases it has been held that though the right to sue is personal to the applicant and lapsed on his death the legal representatives would be entitled to come on record and continue the action in forma pauperis if they were themselves paupers but if they were not paupers then on payment of court fees as prescribed. The question as to whether it was a personal right came up for consideration before the Supreme Court and the Supreme Court made observation in the decision reported in (5) AIR 1962 SC at page 941. In that case the question for consideration was as to the nature of an application for leave to sue in forma pauperis and about an application made by a defendant to be transposed to the category of the applicant. While dealing with these: questions the Supreme Court held that the High Court was in error in holding that by an application to sue in forma pauperis, the applicant prays for relief personal to himself. An application to sue in forma pauperis is but a method prescribed by the Court for institution of the suit by a pauper without payment of fees prescribed by the Court-fees Act. If the claim made by the applicant that he is a pauper is not established, the application may fail. But there is nothing personal in such an application the suit commences from the moment the application for permission to sue in forma pauperis as required by Order 33 of the Code of Civil Procedure is presented but Order 1 Rule 10 of the Code of Civil Procedure would be as much applicable in such a suit as in cases where Court fees have been duly paid. It is true that a person who claims to join as petitioner praying for leave in forms pauperis must himself be a pauper but his claim to join by transposition as an applicant must be investigated it is not liable to be rejected on the ground that the claim made by the original applicant is personal to himself’. In the above mentioned case what happened was that the petition for leave to sue in forma pauperis was filed in the Court of Subardinate Judge by a minor through his next friend for declaration, possession and mesne-profits. That petition was rejected by the Subordinate Judge on the ground that it discloses no cause of action. The father of the minor plaintiff, who had been impleaded as defendant no. 2, filed an application for being transposed as a petitioner but that was also rejected. Both the petitioners than applied to the High Court but without success. Then the matter came up before the Supreme Court with the result indicated above. The above decision of the Supreme Court practically overruled the view taken in numerous cases of the different High Courts that the right was a personal one to the applicant and lapsed on his death. The effect of it on the legal representative will be that the legal representative would be entitled to bring them on record and continue the suit or the appeal in forma panperis on proof of their pauperism. A formal application for such an opportunity need only be made to the Court concerned by such legal representative and the moment such an application is made it should revert back to the date of the appeal which was very much alive and there would be no question of limitation. In the instant case before me the petitioner as the legal representative of the deceased appellant Sushilabala Dasi had been brought on record within the period of limitation. It was thus open to her either to continue the appeal on payment of Court-fees or continue the appeal as a pauper on proof of her pauperism. In the instant case before me the petitioner as the legal representative of the deceased appellant Sushilabala Dasi had been brought on record within the period of limitation. It was thus open to her either to continue the appeal on payment of Court-fees or continue the appeal as a pauper on proof of her pauperism. During the intervening period between the date when she applied for being substituted in place or Sushilabala Dasi, and she finally decided to seek permission to continue the appeal as a pauper, the opposite party moved the Court for a direction upon the petitioner to pay court-fees and there was in fact such a direction and extension of time was also obtained once before finally deciding to continuo the appeal as pauper on proof of her pauperism. In the case reported in (6) AIR 1962 Mysore at page 47, it has been held that when a pauper died during the pendency of an application made by him for permission to sue as a pauper his legal representative would be entitled to be brought on record in his place and to continue proceedings as a suit on payment of court-fees or on proof of the fact that they were paupers and were not able to pay court fees. The decisions reported in (7) AIR 1952 Cal. 696 and (8) AIR 1955 Allahabad 53 (FB) were relied upon in coming to the above decision. 10. The next position that is reached from the decisions referred to above is that the petitioner as the legal representative of the original appellant Sushilabda Dasi having substituted herself within time prescribed therefor in the appeal which was very much alive at the date she filed her application to continue the appeal as a pauper, her application would relate back to the date when the memorandum of appeal was presented with an application seeking leave to appeal as a pauper and there would not be any more question of limitation over this application. This is so because the position would be the same had Sushilabala Dasi died during the pendency of her application for leave to appeal as a pauper. Any other interpretation on the question would, in my view, lead to absurdities. 11. This is so because the position would be the same had Sushilabala Dasi died during the pendency of her application for leave to appeal as a pauper. Any other interpretation on the question would, in my view, lead to absurdities. 11. Conceivably, therefore, it is patent that the lower Appellate Court assumed jurisdiction illegally that was not vested in it and there was also a failure to exercise jurisdiction vested in it inasmuch as it overlooked the position of such a legal representative in law. Moreover the said Court in that context ought to have treated the application filed by the petitioner purporting to be one under Section 151 and Order 44 rule 1 of the Code of Civil Procedure as a simple petition seeking an opportunity to continue the appeal as a pauper on proof of her pauperism in respect of which no question of limitation could arise. 12. In the above view of the matter the revisional application succeeds. The Rule is made aboslute. The order passed by the lower Appellate Court rejecting the petitioner's application to continue the appeal in forma pauperis and the order dismissing her petition for review of the said order dated 28.2.73 in all respects are set aside. The lower Appellate Court having already found the petitioner a pauper, she is permitted to continue the appeal as a pauper. Let the record be sent down at an early date and the lower Appellate Court will now proceed with the appeal according to law as expeditiously as possible. There will be no order as to costs.