Chidambaram represented by his maternal grandfather Natesa Mudaliar as his next friend vs Nataraja Mudaliar and Others

Gentle, J.—In this application the applicants desire that an order may be made for the appointment of a Commissioner for the taking of an

inventory of the movable properties at premises No. 15, Kuppumuthu Street, Triplicane, Madras. I am satisfied on the merits that the applicant is

entitled to the appointment of such a Commissioner. This application is made after the filing of a petition for leave to sue in forma pauperis and

before leave has been granted as prayed for in that petition. The question is whether there is a suit pending inasmuch as the right of the applicant to

apply for the appointment of a Commissioner arises under Order 39, Rule 7, Civil Procedure Code, in which the following words appear:

The Court may on the application of any party to a suit,...make an order.

If there is no suit, then there can be no parties and if there are no parties to a suit, this Court is unable to make an order appointing a

Commissioner. This same matter came on before me in Application No. 1849 of 1937 and upon the arguments and authorities then placed before

me, I came to the conclusion that the parties in a contemplated pauper suit whose petition to have their suit admitted under the provisions of Order

33, Civil Procedure Code, were not entitled to the relief of appointment of a Commissioner or receiver inasmuch as no suit was in existence unless

and until the petition to be admitted as a pauper was granted. In the application I have just mentioned, my attention was not directed to a decision

of the Privy Council reported in (1880) ILR 2 784 (Privy Council) . In that case, their Lordships of the Privy Council discussed at length the date

when a pauper suit commences, and at page 136 the following conclusion is expressed:

In their view the petition to sue as a pauper became a plaint, and under this statute the suit must be deemed to be instituted when that application

was filed.

The statute referred to is the Statute of Limitations, Act IX of 1871, Clause 4. Had my attention been drawn in the previous application, to this

authority of the Privy Council, my view would have been different from that expressed therein. In my view, on the authority of the above decision,

on the presentation of the petition to sue as a pauper, the suit is to be deemed to have been instituted, and therefore there must be parties, the

parties being those persons cited in the copy of the plaint filed with the petition. I therefore desire to reconsider the decision in Application No.

1849 of 1937. There will be an order for the appointment of a Commissioner to take an inventory of the movable property consisting of jewellery,

cash, silverware, and other items in the possession of the second defendant, Amirthammal, and to be found in premises No. 15, Kuppumuthu

Street, Triplicane, Madras. This appointment will be conditional upon Mr. A.B. Nambiar undertaking to me to pay into Court by the 15th January,

1938, the sum of Rs. 50 in respect of the remuneration of the Commissioner. Mr. M.V. Ganapathi, an Advocate of this Court, is appointed the

Commissioner. This order can be drawn up and issued forthwith.