JUDGMENT
D.K. Kapur, J.
(1) This is an appeal directed against an order passed in a petition under Order 33, Rule I of the Code of Civil Procedure which is pending on the Original Side of this Court. The petitioner in that case I.P.A. No. 19 of 1974, has sued for return of her Stridhan or alternatively for the recovery of a sum of Rs. 2,39,157.00 being the value of that Stridhan. She has claimed to be an indigent person not in a position to pay the courtfee required for a suit of this nature. The first respondent in that case is the husband of the applicant. Amongst the property claimed are five National Savings Certificates of seven years maturity. Each Certificates is of a sum of Rs. 1,000.00 and the maturity value is Rs. 10.000.00 . These Certificates are Nos. 364930 to 364934. The said respondent, or rather the ex-husband as the divorce has now been granted, offered these five Certificates to the petitioner during her cross-examination. The learned Court had to decided whether the offer of these five Certificates meant that the petitioner ceased to be an indigent person because this property of value between Rs. 5,000.00 and Rs. 10,000.00 would mean that she would be in a position to pay the court-fee.
(2) The Court came to the conclusion that the offer was tantamount to a partial decree in favor of the petitioner and therefore, the Court-fee was payable. It appears that Explanation Ii appearing in Order 33, Rule I of the Code was also referred to because it is provided there that if a person acquires property during the pendency of the application, that too has to be taken into account in deciding the question whether a person is an indigent person.
(3) It appears to us that this matter is really covered by Explanation I, which excludes the property which is the subject-matter of the suit from being included in the assets of the applicant for determining the question whether he or she is an indigent person.
(4) The three Explanations appearing in Order 33, Rule I are as follows: “R.I 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, or (b) where on such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject- matter of the suit. Explanation II- Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person. Explanation III- Where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity.”
(5) The first Explanation shows that a person is an indigent person if he has not sufficient means to pay the court-fee. For determination of this amount, the exempt property and the subject-matter of the suit has to be excluded. These Certificates are the’ subject-matter of the suit, and therefore, are not to be taken into consideration for determining whether she has means to pay the court fee. The mere fact that she gets them either during or after the suit, is immaterial. They will still continue to be the property which is the subject-matter of the suit.
(6) If any other reasoning is adopted, the result would be that we may have to say that the entire amount of the dowry claimed in the suit, which amounts to Rs. 2,32,l57.00 according to the applicant, is the property of the applicant and, therefore, she is clearly possessed of sufficient means to pay court fee. However, as the purpose of the suit is to cover this very amount, i.e., the dowry of Stridhan amounting Rs.2,39,l57.00 , amount cannot be taken into consideration because mere deprivation would otherwise debar the petitioner to recover the amount, merely because the Court-fee cannot be paid.
(7) Furthermore, even if we apply the second Explanation for arguments sake, the Certificates are to be encashed in 1988 as they are seven years Certificates. Of course, they may be sold at a loss or got discharged at a loss. But, that is not the object of realisation of the court-fee. These Certificates do not appear to be ‘property’ in the real meaning to be given to this word in Explanation II.
(8) This Explanation states that if any property is acquired by a person, he or she will have more means and, therfore, cease to be an indigent person. That is the legal effect of this Explanation. As it happens, these Certificates were already belonging to the petitioner ; they were only in the possession of the first respondent and the suit is for recovering them. She has actually not acquired any new property but, if we assume that she has, nevertheless, that property is realisable after seven years and a sale at this stage would merely cause a substantial loss to the petitioner for which reason we do not think this Explanation to be applicable.
(9) In any event, we think that these Certificates have to be excluded altogether from consideration for the purpose of determining whether the applicant now appellant, should be considered to be or not to be an indigent person.
(10) In any case, the offer of the first respondent to give these Certificates seems also to be activated by the belief that this property will be sold at a loss.
(11) In addition to all this, an offer made like this during the course of the proceedings is of no real effect except to create a sense of doubt. Unless the case is finally decided, this property will not come to the appellant and she is under no obligation to accept an offer of this type which will harm her own interest.
(12) For all these reason reasons, we accept this appeal and hold that these National Savings Certificates are not to be taken into account in determining the means available to the appellant for paying the requisite court-fee.
(13) Both learned counsel concede before us that if the Certificates are not taken into account, then there is no other material to show the property owned by the appellant and she will have to be allowed to sue as an indigent person. We accordingly decided LP.A.No. 19 of 1984. The permission to sue as an indigent person thus stands allowed. The appellant will be entitled to her costs in this appeal.
(14) The application will now be listed as a plaint and for further proceedings it will be listed before the Deputy Registrar on 12th February, 1986. for filing the written statement by the respondents, if they so desire. The Deputy Registrar may give further time to the respondents in his discretion.