H. N. TILHARI, J. ( 1 ) THIS revision is under Section 115 of the Code of Civil procedure, for short, Code, has been filed by the husband of the opposite party, against whom, the opposite party had filed a suit for maintenance and while, filing the plaint in the suit, the opposite party had moved an miscellaneous application under order 33, Rule 1 of the Code, for being adjudged as an indigent person. ( 2 ) THE Trial Court after consideration of the material on record declared the opposite party to be the indigent person vide order dated 16-9-1995. The husband of the opposite party, has filed this revision under Section 115 of the Code challenging the order under which the opposite party has been allowed to sue as an indigent person. ( 3 ) I have heard the learned Counsel for the petitioner, who is respondent 1, in the Trial Court. It is urged by the learned counsel that the learned Court below failed to appreciate the intent of legislature in the enacting of the provision for allowing the persons to sue as indigent persons. Further, he submitted before me that the opposite party, who is petitioner before the trial Court and respondent 1, in course of her cross- examination has admitted that at the time of her marriage, she has been given two strips gold chain, a mangalasutra and a finger ring. That the Court below committed error of law when it declared her as an indigent person as it has not taken into consideration these ornaments of opposite party which admittedly, she had got in her marriage. It has been urged out that the respondent was married to the present revisionist sometimes in 1986, and these ornaments are alleged to have been given in the marriage. That when she i. e. , respondent was cross examined and asked whether she yet continues to be in possession of those ornament, opposite party denied that she is possessed of those ornaments. That in Criminal Miscellaneous case No. 519 of 1990, she had admitted the possession of those ornaments. That when she i. e. , respondent was cross examined and asked whether she yet continues to be in possession of those ornament, opposite party denied that she is possessed of those ornaments. That in Criminal Miscellaneous case No. 519 of 1990, she had admitted the possession of those ornaments. On the basis of these statements, learned Counsel for the revisionist submitted that when she, as mentioned earlier, admitted possession of the ornaments given to her in marriage, she is presumed to be continuing in possession of those ornaments and that should have been taken into consideration by the Court below for the purpose of determining her status as indigent person. Finally, the learned Counsel for the revisionist submitted that the ornaments could be sold and the amount towards Court fee could have been arranged by her and therefore, Court below acted illegally in not taking into consideration this aspect of the matter and the order impugned as such is liable to be challenged under Section 115 etc. , and the revision is maintainable on the ground of Court's acting illegally and with material irregularity. ( 4 ) I have applied my mind to the contentions made by the learned Counsel for the revisionist. The scope of jurisdiction of this Court under Section 115 of the Code is circumscribed by conditions specifically mentioned and prescribed by Section 115 and in order to successfully call upon the Court to exercise jurisdiction vested in it, the burden is on the revisionist to prove that the present case is one in which all the requisite conditions for the exercise of Section 115, C. P. C. jurisdiction do exist. In my opinion for reasons to be given hereinafter, this revision is without merits and is liable to be dismissed. ( 5 ) THE first thing to be taken into consideration in this case is whether the Lower Court did at all commit any illegality of the nature as suggested by the learned Counsel for the revisionist, firstly, it has to be proved by the opposite party to the application under Order 33, C. P. C. , i. e. , by the revisionist that the present respondent, i. e. , the lady was possessed of those ornaments on the date when she moved the application for being allowed to sue as indigent person, that is, in the year 1995. No evidence has been pointed out to show that she is or has been possessed of ornaments alleged on the date of application or subsequent thereto particularly when respondent, i. e. , the lady has denied the suggestion that she is in possession of those ornaments. Secondly, even if for a moment for argument sake it be taken that she is possessed of those ornaments, that is, the two strips golden chain, Mangalasutra and the finger ring which were given to her at the time of marriage, in my opinion, that could not be taken into consideration while judging or determining the question of her being indigent person. Order 33, rule 1 of the Code of Civil Procedure as amended by Act No. 104 of 1976, reads as under: order 33, Rule 1, suits may be instituted in forma pauperis. Subject to the following provisions, any suit may be instituted by an indigent person. Explanation I. A person is an indigent person. (a) If he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit. Clauses (b) and other parts of Rule 1 are not relevant for the purpose and so, they are not been quoted. It has not been proved or shown that she is possessed of sufficient means to enable her to pay the fee, what has been proved is that she is possessed of some property, namely, the ornaments given to her in marriage which according to the Court below could not be taken into consideration, while the learned Counsel for the revisionist says that they should have been taken into consideration and if they are taken into consideration, she would not be an indigent person. The property that is exempted for attachment, sale and execution of decree, as well as the subject-matter of the suit as per Rule 1, cannot be taken into consideration in determining the question if the alleged party is an indigent person or not. ( 6 ) SECTION 60 of the Code provides and prescribes what are the properties which are not liable for attachment or sale as per proviso thereto, that material portion of Section 60 is the proviso as clause (1 ). ( 6 ) SECTION 60 of the Code provides and prescribes what are the properties which are not liable for attachment or sale as per proviso thereto, that material portion of Section 60 is the proviso as clause (1 ). Section 60 (l) (a) of the Code reads as under:"section 60. Property liable to attachment and sale in execution of decree: (1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundies, promissory notes, government securities, bonds or other securities for money, debts, shares in a corporation and save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be. , held in the name of the judgment-debtor or by another person in trust for him or on his behalf: provided that the following particulars shall not be liable to such attachment or sale, namely, (A) the necessary wearing apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman". ( 7 ) THAT as regards gold necklace, mangalasutra, ear rings, nose nailes or ornaments used in nose by married women, bendi, or ornaments of legs such as bichhia, payal, lachcha and the like provided to woman to decorate a woman (Suhagil Aurate) for her shringar have got their religious importance and cannot be parted away from her. A perusal of this provision per se reveals that the ornament belonging to a lady, which, cannot be parted with by a woman according to religious usage, cannot be a subject-matter of attachment and those ornaments cannot be considered and taken into consideration, while, considering the question that if the person is possessed of ornaments has sufficient means to enable him to pay the Court fee. When I so observe, I find support from the Division Bench decision of the calcutta High Court in Smt. Mabia Khatun v Sheikh Satkari and Others , under its Division Bench observed as under:"besides if the ornaments were such as are ordinarily worn by women of her class, those ornaments could not have been taken as means enabling her to the prescribed fee. Ornaments which a women ordinarily wears are of the same class of personal property as her wearing apparel. Without any finding that the ornaments were something beyond and more valuable than what a woman of her class ordinarily uses the Subordinate Judge's conclusion cannot be accepted as correct". ( 8 ) IN the Calcutta's case, the conclusion of the Sub ordinate Judge which the High Court has said to be not correct was to the effect that she has personal property out of which she could pay the Court fee payable on the plaint and that she will not be allowed to sue as a pauper, was declared to be incorrect as the subordinate Judge had taken the view that the lady was possessed of ornaments and that she did not produce them saying that they were with her husband and so, the Court held that she had sufficient means to pay Court fees on the plaint. From this view of Calcutta High Court it emerges that unless the person challenging her application proves that the ornaments with which she is possessed of were something more than and beyond what woman of her class ordinarily uses, it could not be urged that those ornaments should have been taken into consideration. ( 9 ) THE Division Bench of Orissa High Court in Nishamoni Debi and Another v Joy Krishna Panda and Others , also had the opportunity to consider this question. In that case also, the munsiff had taken into consideration the worth of the ornaments possessed by the lady and on that basis, the Munsiff concerned has refused to permit Nishamno Debi as forma pauperis. The learned Judges of the Division Bench, while, dealing with this aspect of the matter observed that the 3rd reason put forward is that the petitioner must have been given ornaments and utensils at the time of her marriage as dowry as it is usual for girls to be given such presents. The learned Judges of the Division Bench, while, dealing with this aspect of the matter observed that the 3rd reason put forward is that the petitioner must have been given ornaments and utensils at the time of her marriage as dowry as it is usual for girls to be given such presents. The learned Munsiff had relied upon the evidence of O. P. W. 1 for the statement that the petitioner has ornaments worth Rs. 400/ -. . . . But, even accepting the evidence of O. P. W. 1 at its face value it cannot be said that these ornaments are such as can be parted with by a Hindu woman, who has her husband alive and these ornaments are worn daily and as such constitute the wearing apparel of a Brahmin Hindu woman. After having recorded the finding, the Division Bench of the High Court set aside the order of the Munsiff, whereby, the munsiff has refused the permission to the petitioner to sue as forma pauperis. ( 10 ) A reference has been made to the Division Bench decision of the Allahabad High Court in Mt. Kiran Devi v Madan Lal and another , in which the Division Bench of the Allahabad High court expressed the difference from decision of the Calcutta High Court and held:"that we are not prepared to follow that decision (Calcutta High Court) and to hold that the ornaments in possession of a woman are a part of wearing apparel and should not be taken into consideration in finding out whether she has the means to pay the Court fee". ( 11 ) I have applied my mind to the decision of the Hon'ble Judges constituting the Division Bench of the Allahabad High court and with all due respects, I am unable to follow the division Bench decision of the Allahabad High Court, as it appears not to be based on consideration of material provision or section. Apart from that, the reasoning given by the Division bench of the Calcutta High Court and order therein appears to be strong, and the Hon'ble Judges constituting the Allahabad high Court did not indicate any reason for dissenting with the opinion expressed by the Calcutta High Court. Therefore, I do not consider it proper to follow the Division Bench decision of the allahabad High Court. Therefore, I do not consider it proper to follow the Division Bench decision of the allahabad High Court. In my opinion, the law laid down by the division Benches of the Calcutta High Court and that of the orissa High Court deserves to be followed, with all due respects to the Allahabad High Court constituting Division Bench, I- may observe that the Hon'ble Judges did not apply their mind to the expression used in the proviso to Section 60 of the Code, with reference to the ornaments which is quoted above. ( 12 ) THE decision of the Allahabad High Court appears to besuf fering from the doctrine of per incurriam sub-silentio. ( 13 ) THE view, as expressed by Calcutta and Orissa High Courts, has been expressed as long back as in 1885, by the division Bench of Bombay High Court in Appana v Tangamma. The Bombay High Court has laid it down that the neck ornament such as mangalasutra is also an ornament which cannot be attached in execution of decree, Sargent CJ. , of the bombay High Court delivering the Division Bench decision observed: We think that, having regard to the universal practice amongst Hindus for a married woman to wear a mangalasutra during the life-time of her husband without ever removing it, it must be regarded as a part of her necessary wearing apparel, and therefore, not liable to execution. Thus, this decision also reveals that neck ornaments like mangalasutra generally, a married woman puts on is also part of wearing apparel and non- attachable. A reference has also been made at bar to the case in asha Devi v Devi Dayal and Another. The Patna's case related to a widow possessed of ornaments and in that context, the patna High Court had taken the view that her ornaments should be taken into consideration, while deciding the question of her sufficiency of means to pay the requisite Court fee. This Patna case is not applicable to facts of present case. ( 14 ) THIS present case before me is not a case of widow as was in the case before Patna High Court. This Patna case is not applicable to facts of present case. ( 14 ) THIS present case before me is not a case of widow as was in the case before Patna High Court. ( 15 ) IT is well settled that a married woman in particular, according to the religious customs prevailing in the society, ordinarily do put on ornaments, such as mangalasutra, bendi, rings, chain, the nath in the nose and sometimes the nath or ornaments like ear rings and the like, are the ornaments which are put on by married women generally in the social custom of suhagil woman. In the legs also, certain ornaments such as lachcha, bichhia etc. , are also used as a religious custom by married woman during the time her husband is alive. In such a situation ordinarily, the ornaments that are given to a woman at the time of marriage and even ornaments that are given to a woman at the time of marriage as articles of shringar to married women and even those ornaments which are possessed by her as pieces of shringar of married woman for being put on during married life after marriage, they are such properties which are exempt under proviso to Section 60 and particularly, clause (a) to Section 60 and such properties cannot be taken into consideration for the purpose of determining the question whether she is able or unable to pay the Court fee, even if she is possessed of such properties or such ornaments. These ornaments cannot be considered to be the properties for the purpose of being considering her capability or capacity to pay the court fee. In this view of the matter, if the Court below did not take into consideration these ornaments, it did not commit any illegality. Apart from that any ornaments that are possessed by a woman and then, if a party asserts that it should be taken into consideration for determining her capability to pay the Court fee, burden is on that party to prove that it is not an ornaments ordinarily put on or required to be put on by married woman according to the customs prevailing in the society. In the present case, no evidence in this regard has been led by the revisionist. In the present case, no evidence in this regard has been led by the revisionist. It is as such not open to the revisionist to urge that the Court below committed illegality in declaring her to be an indigent person. In my opinion, no illegality or irregularity has been committed by the Court below. Apart from that, even if, if I would have come to a finding that the order suffers from illegality, I would have no jurisdiction to upset the order or to reverse order of Trial Court. ( 16 ) THE proviso to Section 115 of the Code specifically provides that no order passed by a Subordinate Court shall be reversed or set aside or authority in exercise of powers under section 115, until and unless that be a case covered by either of the clauses (a) or (b) to the proviso. A reading of the proviso indicate that if a case is made either in clauses (a) or (b), then and then only, the order of the Courts below can be set aside or reversed. Those conditions are (a) that the order must be such that if made in favour of the party applying for revision would have finally disposed of the suit or proceedings. In my opinion, even if the application for declaring her to be an indigent person had been rejected, it would not have finally disposed of the suit, because while, rejecting the application Court would have provided opportunity to the applicant to pay the Court fee and then, if she would have somehow paid Court fee, the suit could not have been dismissed. Then, it means if the order would have been made in favour of the revisionist, it would not have finally disposed of the suit. The second condition is that if order is allowed to stand, there should be a tendency to cause or occasion failure of justice or irreparable injury to the revisionist, i. e. , party against whom it was made by Court below. Court fee is a matter in between the plaintiff and the State, so, it is really, a matter pertaining to a Court fee that whether applicant deserved to be allowed to sue without paying initially. Court fee is a matter in between the plaintiff and the State, so, it is really, a matter pertaining to a Court fee that whether applicant deserved to be allowed to sue without paying initially. Secondly, if the plaintiff-applicant in the Court below had been allowed to sue as forma pauperis, I do not find that any injustice has been done to the revisionist-petitioner, that is, to say to the defendant, nor it is a case of any injury being caused to the defendant. A party has been allowed to set up his rights and to fight for her rights and to seek the reliefs for enforcement of her rights. By that, no injury can be said to have been caused to the defendant, no right inter se of the plaintiff-defendant had been decided. Thus considered in my opinion, this present revision is devoid of merits and as such, it is hereby dismissed. --- *** --- .