Dhandapani Udayar and Another v. Annammal, Minor and Others
1998-02-19
S.M.ABDUL WAHAB
body1998
DigiLaw.ai
Judgment : The appeal has been preferred against the order dated 29. 1993 in O.P.No.34 of 1991 refusing to permit the plaintiffs to sue as paupers. 2. The suit is for recovery of possession. The court fee required to be paid is Rs.5,6275. The appellants stated that they are not in possession of the property. Thus they have no means to pay the court fees. The counter was filed by the respondent contending that they have obtained a decree on the file of the Munsif Court, Tiruvannamalai in O.S.No. 173 of 1991 on 11. 1992. The learned Subordinate Judge who passed the order on 21. 1993, had taken note of this decree and held that since they are in possession of a decree in their favour, they could not be treated as indigent persons. Hence he rejected the claim of the petitioners. In this revision petition, the learned counsel for the petitioner vehemently contended that mere obtaining a decree is not possessing the means to raise funds. According to him, obtaining a decree for possession of a property does not mean that the appellants are in possession of the property itself. They have to initiate execution proceedings to recover possession. Only thereafter, they will be in a position to raise money. 3. After the counter was filed, nothing, prevented the petitioners from filing a reply by stating that even though they have obtained decree on 11. 1992, it has not become final, in view of any appeal preferred. Therefore it is clear that they have possessed a decree which could be executed. As per 0.33, Rule 1 of the Code of Civil Procedure, the requirement is possession of means and not possession of property. Property is one of the means to raise funds. A decree can also be treated as means for raising funds. The Explanation I to Rule 1 reads as follows: "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. ‘ What the court is concerned is with is whether the person is in possession of sufficient means. In my view, possession of a decree is also possession of means. 4.
‘ What the court is concerned is with is whether the person is in possession of sufficient means. In my view, possession of a decree is also possession of means. 4. I do not find any infirmity in the order of the trial court. Hence, the Civil Miscellaneous Appeal is dismissed. No costs, However, the appellants are granted three months’ time for payment of court fee. Consequently, CMP.No.247 of 1994 is closed.