JUDGMENT
1. The facts giving rise to this appeal are these. The plaintiff appellant sued the defendants respondents for recovery of Rs. 6500 as principal, besides interest, on the basis of two hand notes dated 10-7-1956 and 25-7-1956 executed by respondent No. 1, Lal Mohammad as representative of all the defendants in favour of the plaintiff. The defendants admitted the first hand note but alleged that the second handnote was a forged one and no consideration passed therefor. It was also pleaded that the suit was barred by limitation. The question of limitation arose, because originally the plaintiff had made an application on the 7th July, 1959 to sue in forma pauperis under Order 33 of the Code of Civil Procedure. This application was rejected on contest by the trial Judge on the 30th June 1960 but on the same date he passed the following order in the order sheet:
“20.30.6.60 Pauper application having been disallowed as per judgment in separate sheets in Misc. Case 33/59 it is registered as money suit no 65 of 1960 Sheristadar to check and report by 8-7-60 1st to 6th being holidays”
On the 8th July, 1960 the court directed the plaintiff to pay court-fee of Rs. 821.25 P. by the 18th July. 1960. The plaintiff look time on the 18th July and on next date, i.e., the 21st July, she filed a petition for further time on the around that she had already deposited the amount of court fee by chalan but had not received the Court-fee from the treasury. The court-fee was filed on the 23rd July. 1960, and on the 25th July, the date to which the case had been adjourned on the 21st July, the plaint was admitted and, summonses were ordered to be issued to the defendants.
2. Both the courts below found the two handnotes to be genuine and for consideration, and the trial court decreed the suit in full with costs against all the defendants after rejecting the plea of limitation. On appeal, the learned District Judge of Dhanbad, however, found only respondent No. 1, who had alone executed the handnotes, liable for the dues; but he dismissed the suit on the ground that the suit was deemed to have been instituted on the 30th June, 1960, i.e., more than three years from July 1956. Hence, this appeal by the plaintiff.
3. The only ground urged by the learned Advocate for the plaintiff appellant in this court is that the finding of the court of appeal below regarding limitation of the suit is wrong. He submitted that the suit must be deemed to have been filed on the date the application for permission to sue as a pauper was made and not on the 30th June, 1960 or on any date thereafter. On the other hand, Mr. Rajgarhia submitted that the suit must be deemed to have been instituted on the date when the application for permission to sue as a pauper was registered as a plaint i. e., when the plaintiff applicant requested the court to treat the application as a plaint and to grant him time to pay court-fee. He explained this submission to mean that the court could treat the application as a plaint only after a petition were made to that effect by the applicant plaintiff. He could not cite any authority in support of this submission, nor could he point out any provision to that effect either in the Civil Procedure Code or in the Limitation Act. On the other hand, a Full Bench decision of this court in Ramashree Roy v. P.K. Pathak, 1967 B.L.J.R. 594 : (AIR 1968 Pat 1) (FB) which is based on a decision of the Supreme Court in Vijal Pratap Singh v Dukh Haran Nath Singh, AIR 1962 SC 941 supports the contention of the plaintiff appellant. In this case, their Lordships of the Supreme Court, after summarising the provisions of Order 33 of the Code, said:
“An application to sue in forma pau-peris is but a method prescribed by the Code for institution of a suit by a pauper without payment of fee 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 an application for permission to sue in forma pauperis as required by Order 33 of the Code of Civil Procedure is presented.”
It is clear from this observation that even where the application for permission to sue as a pauper fails after it is registered as plaint subject to payment of court-fees, the suit commences from the moment the application for permission to sue was filed The Full Bench of this court if we may say so with respect rightly took the view that the earlier Patna decision to the contrary shall be deemed to have been overruled by this decision of the Supreme Court. In the instant case, it will be recalled, the trial judge, soon after dismissing the application for permission to sue as a pauper, directed on the same date, i.e., 30-6-1960, that the application be registered as a money suit. The question raised in this appeal is, therefore, covered completely by these two decisions, and the suit out of which this appeal arises shall be deemed to have commenced from the date when the application was made, viz., 7-7-1959, which would be within three years of the dates of execution if the two handnotes
4. Mr. Raigarhia, however, referred to Section 13 of the new Limitation Act and submitted that, if that were the legal position before the commencement of the new Limitation Act, there was no necessity for inserting this new section which enacts:
“In computing the period of limitation prescribed for any suit or appeal in any case where an application for leave to sue or appeal as a pauper has been made and rejected, the time during which the applicant has been prosecuting in good faith his application for such leave shall he excluded, and thp court may on payment of the court-fees prescribed for such suit or appeal, treat the suit it appeal as having the same force and effect as if the court-fees had been paid ir the first instance.”
But this section was inserted only to make the position clear on account of a conflict of decisions. Order 33, Rule 5 of the Code lays down the grounds on which an application to sue as a pauper can be rejected, while Order 33, Rule 7(3) of the Code provides that the court shall either allow or refuse to allow the applicant to sue as a pauper after enquiring and hearing the parties. There is no provisions in the Code except amendments by two High Courts (not the Patna High Court) under which a court can allow payment of court-fees with retrospective effect when the application is refused. Hence, the question arose whether the court, in such a case, could allow court fees to be paid under Section 149 of the Code; and there was a conflict of decisions on this question. This was resolved by inserting Section 13 in the new Limitation Act. Even before the enactment of this Act, the Supreme Court in Mahanth Ram Das v. Ganga Das, AIR 1961 SC 882, took the view that under Section 149 the court had ample powers in this respect. In that case, an appeal was decided by the Patna High Court in favour of the appellant on condition that he paid court-fee on the amended relief of possession of properties involved in the suit for which purpose the case was sent to the court of first instance for determining the value of the properties and for fixing the amount of court-fees to be paid. On receipt of the requisite report from the court of first instance the High Court determined the value finally for the purposes of the suit and directed that ad valorem court-fee was payable on it. It was further directed that the High Court office would calculate the amount of court fee payble on the valuation for the purpose of the plaint as well as the memorandum of appeal in this court: three months ‘time was allowed for payment of the same from the date counsel for the appellant would be informed of the calculation by the Deputy Registrar of the High Court. It was further ordered that if the amount were not paid within that time, the appeal will stand dismissed, Later on, the appellant made an application for extension of time before the time fixed had run out, but the application came up for hearing before a division bench beyond the extended time. In view of this fact the High Court rejected the application and refused to accept court-fees after the time which had been allowed by the earlier order. Subsequent applications Under Section 151 as also for review were dismissed by this court. The Supreme Court allowed the appeal against this order and observed:
“But we are of opinion that in this case the Court could have exercised its powers first on July 13, 1954 when the petition filed within time was before it, and again under the exercise of its inherent powers, when the two petitions under Section 151 of the Code of Civil Procedure were filed. If the High Court had felt disposed to take action on any of these occasions, Sections 148 and 149 would have clothed them with ample power to do justice to a litigant for whom it entertained considerable sympathy, but to whose aid it erroneously felt unable to come.” In view of what has been stated above, no inference can be drawn from the insertion of Section 13 in the new Limitation Act that the court, rejecting an application for permission to sue as a pauper, becomes fun-ctus officio soon after the rejection of the application and it has no power to direct the application to be registered as a plaint and to allow time to the applicant plaintiff to pay court-fees in respect of the same Hence, the contention of Mr Rajgarhia fails.
5. In the result, it must be held that the suit was not barred by time and it must be decreed in full against defendant No. 1, Lal Mohammad alone. The appeal is accordingly allowed with costs throughout payable by defendant No. 1 respondent No. 1.