JUDGMENT
Ross, J.
1. This is an application for one months time to pay Court-fees on Rs. 83,962-5-0 being the value of immoveable property, subject-matter of the decision under appeal.
2. It appears that the applicants brought a suit in which they claimed this immoveable property and prayed for leave to sue as paupers. On the objection of the other side that they were able to pay the Court-fee, the plaint was amended by including moveables also and the suit was then valued at Rs. 2 lakhs and odd. They were permitted to sue as paupers and their suit failed. They then applied to the High Court for leave to appeal as paupers and leave was refused under the proviso to Rule 1 of Order XLIV See 94 Ind. Cas. 814.–[Ed.]. They now give up their claim so far as the moveables are, concerned and pray for one month’s time to pay Court-fee on the value of the immoveable property.
3. The learned Vakil for the opposite party contends that the application cannot be granted because there is now no appeal His view is that by reason of the words in Rule 1 of Order XLIV, “subject, in all matters including the presentation of such application to the provisions relating to suits by paupers, in so far as those provisions are applicable” the provisions of Rule 15 of Order XXXIII take effect and on refusal of the application for leave to appeal as pauper, there is nothing left to be done but to institute an appeal in the ordinary manner. The only authority which supports this argument is the decision in Bishnath Prasad v. Jagarnath Prasad 13 A. 305 : A.W.N. (1891) 99 where it was held that when the petition to appeal in forma pauperis was disallowed the whole of that proceeding came to an end and along with it fell the so-called memorandum of appeal which accompanied it, and that a piece of unstamped paper which accompanied a petition to appeal in forma pauperis could not be called a memorandum of appeal and that it never was a memorandum of appeal in the proper sense of the term which the Judge of the Appellate Court could take cognizance of or make any order upon. This view is opposed to the view taken in Bai Ful v. Desai Manorbhai Bhavanidas 22 B. 848 where the matter was very fully considered by Mr. Justice Farran not only with reference to the prevailing practice in these matters, but on principle also. He came to the conclusion that the memorandum of appeal did not cease to be a memorandum of appeal when an application to appeal as pauper was refused. He pointed out the distinction between plaints and appeals in this matter and observed that, when presented, the application and the memorandum of appeal were two separate documents and in this respect they differed from petitions to sue as pauper which include both the plaint and the allegation of pauperism and the prayer to sue in forma pauperis. The same view was taken by the Madras High Court in Nellavadivu Ammal v. Subramania Pillai 38 Ind, Cas. 617 : 40 M. 687 : 21 M.L.J. 269. The weight of authority is, therefore, against the view maintained by the opposite party and on the proceedings themselves there seems to be nothing to support that view. The application was in these words: “Your petitioners beg leave to file the accompanying memorandum of appeal as a pauper appeal against the aforesaid decree of the Subordinate Judge, Cuttack,” that is to say, there was an appeal definitely presented to the Court and it was presented without a Court-fee, because it was accompanied by an application for leave to appeal as a pauper. In the case of suits the procedure is quite otherwise. There is only one application which includes the particulars required in plaints. Strictly speaking, there is no plaint,|but when the application is granted it is deemed to be a plaint. When the application is refused there is clearly nothing left for the petitioner to do but to file a plaint with the ordinary Court fee. When an appeal is instituted, however, with an application for leave to appeal in forma pauperis the terms of Rule 1 of Order XLIV make it clear that the judgment and decree are appealed from and the rejection of the application has no effect necessarily, that I can see, on the appeal from the judgment and decree. The learned Vakil seeks to distinguish the cases referred to above on the ground that the effect of the amendment of Rule 1 by the inclusion of the words which were quoted at the beginning of this judgment has not bean considered. But the point at issue, namely, the distinction between the procedure in pauper suit and the procedure in pauper appeals has been considered and the language used in the amendment of the rule makes no difference in this matter. In my opinion, therefore, there is an appeal before the Court which was presented within the time limited by law; but as no part of the Court-fee has been paid, Section 149 under which the present application was made, gives the Court a discretion to allow the payment at any stage; and when payment is then made it will have the same effect as if it had been made in the first instance. Even if Section 149 had not this effect, this would, in my opinion, be a case for the application of Section 5 of the Limitation Act.
4. The last argument on behalf of the opposite party was that the present application was mala fide. This rests only on the facts that the valuation of the suit was increased when an objection was made to the application for leave to sue as a pauper and that the valuation of the appeal has been reduced when the application was refused by the High Court. But, in my opinion, no bad faith can be inferred from these facts. There was nothing to prevent the plaintiffs from including the moveables in their claim; and as they have failed in their suit, there is nothing to prevent them from abandoning part of their claim in appeal.
5. I would, therefore, allow this application for leave to pay the Court fee on Rs. 83,962-5-0. Time for this purpose is allowed till the 17th of this month and, if Court fee is not then paid the application will be dismissed. The petitioners are entitled to their costs of this application: hearing fee Rs. 32.
B.K. Mullick, J.
6. I agree.