JUDGMENT
Dawson Miller, C.J.
1. This is an application in the form of a petition praying for leave to file and prosecute an appeal to His Majesty in Council in forma pauperis. The original suit was instituted by the present applicants as plaintiffs in the Court of the Subordinate Judge of Bhagalpur. The suit was dismissed and an appeal to this Court proved equally unsuccessful. In the original suit and in the appeal leave to proceed as paupers was granted. The applicants being aggrieved with the decree of this Court desire to appeal to His Majesty in Council and have lodged a petition asking for a certificate under Section 110 of the Code of Civil Procedure. They now pray the Court to allow them to file and prosecute that appeal as paupers, and the question arises whether this Court has jurisdiction to grant such an application. We have not been referred to nor am I aware of any provision in the Code of the Civil Procedure or the rules made thereunder, or in the rules of this Court, which in terms gives jurisdiction to this Court to grant the relief asked for, and in my opinion the Court has no such jurisdiction. As the question has been raised in an appeal to His Majesty in Council, we think it desirable to state our reasons for the decision arrived at. The Code of Civil Procedure deals with appeals to the King in Council in Sections 109 to 112. Sections 109 and 110 give a right of appeal to His Majesty in Council from any decree or final order passed on appeal by the High Court or any other Court in British India of final appellate jurisdiction where the subject matter in dispute, or the property in respect to which the claim is made, is of a certain value, provided that where the decree or final order affirms the decision of the Court immediately below the appeal must involve some substantial question of law. They also give a right of appeal from any decree or order where the case is certified to be a fit one. The machinery for obtaining such certificate is found in Order XLV and must be applied for by petition to the Court whose decree is complained of. Section 111 bars appeals from the High Court in certain cases and Section 112 saves the royal prerogative to receive or reject appeals at His Majesty’s pleasure. The effect of granting a certificate under Order XLV that the case fulfils the requirements of the sections of the Code mentioned is, inter alia, to oblige the applicant to furnish security for costs and to deposit a sum to meet the expenses of preparing and forwarding the record of the suit. The effect of allowing the suit to be filed and prosecuted in forma pauperis would be to excuse the appellant in that suit from finding security or depositing the usual fees, and where no express power is given to the Court to make an order involving the consequences referred to, I see no reason why we should infer such power to exist by implication.
2. It is contended, however, that Order XLIV, Rule 1, applies to appeals to His Majesty in Council. I am unable to accept this view. There are two Orders in the rules which deal with proceedings by paupers. The first is Order XXXIII which relates to original suits and has clearly no application to appeals, and the other is Order XLIV which relates to appeals and is relied upon. Rule 1 of the latter Order provides that the Court shall -reject the application to be allowed to appeal as a pauper unless upon perusal thereof, and of the judgment and decree, it sees reason to think that the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust. The rule, in my opinion, clearly contemplates an Appellate Court perusing the judgment of a subordinate Court and not, as would be the case if the applicant’s contention is accepted, the Court whose judgment is appealed from perusing its own judgment. It would be very difficult and well nigh impossible for anyone to obtain the order contemplated in the rule, if one of the conditions were that he should first persuade the Court which made the decree that its own decree was contrary to law or erroneous or unjust. Further the very fact that Order XLIV requires an investigation into the merits of the appeal before allowing the application, introduces an element inconsistent with the principle underlying Sections 109 and 110 of the Code of which they form a part. In the sections mentioned no such restrictions on the right of appeal are found. Moreover, it would appear that the Judicial Committee itself in considering the propriety of allowing special leave to appeal in forma pauperis is by no means so exacting [see Rule 8 of the Judicial Committee’s Rules, 1908]. There are other reasons appearing from the wording of Order XLIV itself which seem to me clearly to indicate that it was not intended to apply to appeals to His Majesty in Council. The Calcutta High Court in 1912 in the case of Jagadananda Asram v. Rajendra Roy 18 Ind. Cas. 129 : 17 C.L.J. 381 had to decide a similar question, the only difference between that case and the present being that there leave to appeal had already been granted before the application was made to prosecute the appeal in forma pauperis. The Chief Justice and Sir Richard Harington decided that the Court bad no jurisdiction and dismissed the application, and with that judgment and the reasons given therein I entirely concur. This application will be dismissed. This, however, will not prevent the applicants from petitioning His Majesty in Council for special leave, if they should be so advised.
Chapman, J.
3. I agree.
