Abubakar Nurmahomed and Another vs Jubeda Abdukarim

Chhatpar, J.—This is an appeal arising out of an order directing security to be furnished on an application for attachment before judgment. The application was made during proceedings for leave to sue as a pauper. The Respondent filed an application to bring a suit as a pauper against her former husoand and mother-in-law, the present Appellants, claiming return of ornaments and clothes of the value of Rs. 4680/- and a sum of Rs. 1000/- by way of maintenance. As the Appellants were alleged to be proceeding outside Saurashtra and going to Africa, the Respondent filed an application under Order 38, Rule 5, CPC on 7-5-52, but no order seems to have been passed on this application.

On 28-6-1952, the Respondent repeated the application for attachment before judgment and prayed for an interim order alleging that the Appellants were about to leave for Africa and that they had no property within the jurisdiction of the Court and her claim was likely to be defeated or delayed. She claimed attachment on the very same ornaments and clothes which she claimed as her own in the possession of the Appellants and which she alleged the Appellants were about to dispose of to defeat her claim. The learned Judge on receipt of the application called the advocates of the Appellants and heard them as also the advocate of the Respondent. On the same day an order was passed by him according to which Ismail advocate appearing for one of the Appellants himself undertook to stand as a surety. The said Ismail undertook to continue as surety if the order for furnishing security was confirmed & the Appellants did not furnish any fresh security. In token of his consent, Ismail signed underneath the order passed by the learned Judge. The application was thereafter heard and the learned ''Judge went into the evidence which comprised that of the Respondent and her mother against which no counter-affidavit was filed or any other evidence adduced by any of the Appellants. The J learned Judge confirmed the order that the Appellants, should furnish security. He came to the conclusion that the Respondent had succeeded in making out a fit case for attachment before Judgment; as the security had already been furnished and which was to continue in case the Appellants did not furnish fresh security, there was nothing further to order so far as the actual attachment of the property was concerned. Against this order the present appeal has been filed.

Mr. Mehta the learned advocate for the Appellants has principally argued that the Court had no jurisdiction to entertain an application under Order 38 as that Order contemplates an application to be made in a suit. The proceedings of pauperism are not a suit and therefore the order passed was without jurisdiction. He has referred to two rulings, one of the Calcutta High Court and the other a recent decision of the Mysore High Court. In - Purna handra v. Tara Prasad Maiti AIR 1917 Cal 852 (A), it was held that until a Court had determined whether or not a Plaintiff should be permitted to sue as a pauper, there was no suit before the Court, and, therefore, it had no jurisdiction to make an order for the attachment of Defendant''s property before judgment under Order 38, Code of Civil Procedure, before the Plaintiff''s application for leave to sue in forma pauper is is judicially determined.

In - Thimmayya v. Sadasivappa AIR 1952 Mys 76 (B), the Mysore High Court held that an order for temporary injunction cannot be made under Order 39 during the pendency of proceedings relating to an application for permission to sue in forma pauperis.

On the other hand, the Bombay High Court in - Totaram Ichharam Wani Vs. Dattu Mangu Wani, , held that the filing of the application in the form of a plaint asking permission to sue in forma pauperis which is taken on the file as a plaint, commences the suit. It would be a strange thing if a Plaintiff who desires leave to sue as a pauper, cannot apply to prevent the Defendant from making away with the property in suit until his application for leave has been disposed of. The nature of an application for leave to sue as a pauper was examined and their Lordships referred to the Privy Council case of - Skinner v. Orde 2 All. 241 (D), and the Madras decision in - Chidambaram represented by his maternal grandfather Natesa Mudaliar as his next friend Vs. Nataraja Mudaliar and Others, . They dissented from the view of the Calcutta High Court in - Purna Chandra v. Tara Prasad (A). The Allahabad High Court is also of the same view as the Bombay High Court and its decision in - Dhaneshwar Nath Tewari Vs. Ghanshyam Dhar Misra, , lays down that apart from Order 39 of the Code the Court has ample jurisdiction to pass an order providing for the protection and security of the property which was the subject- matter of the litigation pending an application for leave to sue as a pauper. At p. 187 of the Report are discussed the rulings of other High Courts including those of Madras and Lahore, which I need not discuss in detail.

The correct approach to the question, in my humble opinion, is contained in a recent decision of the Madras High Court in - Periyasami Padayachi v. Ulaganathan AIR 1949 Mad 162 (G) wherein Section 141 of the Code was invoked; by virtue of this Section the procedure in regard to suits is to be followed so far as it could be made applicable in all proceedings in any Court, having civil jurisdiction. In-that case a pauper application was returned for presentation to, the proper Court on the ground of want of jurisdiction, and the order was justified having been made under Order 7, Rule 10 read with Section 141, CPC Chitaley and Rao in their CPC (1951 Edition) u/s 141 at page 1310 cite other cases, wherein Section 141 was resorted to in applying the procedure applicable to suits to proceedings in pauperism. So that besides the solitary ruling of the Calcutta High Court given as far back as in the year 1917 and the recent decision of the Mysore High Court, which does not refer to the Bombay decision nor to Section 141, Code of Civil Procedure, the other High Courts have applied the provisions of the CPC applicable to suits to proceedings for leave to sue as a pauper so far as may be practicable. With respect, I would agree with the decisions of the Bombay High Court and other High Courts which support that view and I hold that the Court has power to entertain an application under Order 38, Rule 5, CPC in proceedings for leave to sue as'' a pauper. I therefore overrule the objection of Mr. Mehta that the Court had no jurisdiction to pass the order.

On merits, Mr. Mehta, has not seriously argued. He has in fact very little to say. The Respondent had made out a good case for the order of attachment before judgment; the Appellants were leaving for Africa and they were about to dispose of the very property sought to be attached when the application was filed. They have not filed any affidavit to show that they have any other property. The affidavits of the Respondent and her mother and the cross-examination of the former taken together with absence of denial on oath by any of the Appellants make out a case for attachment before judgment. As the Appellants have already furnished security in the person of Ismail Advocate, he would continue liable as surety in accordance with the undertaking given by him, unless the Appellants give fresh security. This appeal therefore fails and is dismissed with costs.