Manicka Chetti vs Narayanasami Naidu and Others

Cornish, J.—The petitioner who applied for leave to sue as a pauper has brought a suit to redeem a mortgage for Rs. 6,000. The mortgage

is stated to be a mortgage by conditional sale, and the petitioner is not in possession. In his plaint he alleges that the mortgaged property is worth at

least Rs. 12,000. The Subordinate Judge has dismissed the application in the following words:

The petitioner cannot redeem except on payment of Rs. 6,000 according to him. If he can find that amount after the decree is passed he can find it

now and file the suit after paying Court-fee.

The petitioner in order to bring himself within the explanation of ""pauper"" in Order 33, Rule 1, Civil Procedure Code, must show that he is not

entitled to property worth Rs. 100 other than his necessary wearing apparel and the subject-matter of the suit. He has at least the equity of

redemption which he admits to be worth considerably more than Rs. 100. In Kapil Deo Singh v. Ram Rikha Singh I.L.R.(1910) 33 A. 237 it was

held that a plaintiff suing for redemption of a mortgage could not be allowed to sue as a pauper, when he could raise money on his equity of

redemption. The ground of that decision was that such a course did not amount to a mortgaging of the plaintiff''s claim within the mischief aimed at

in Vedanta Desikacharyulu v. Perindevamma I.L.R.(1881) 3 M. 249. The report does not state what was the character of the mortgage or

whether the mortgagor was in possession. But the ruling does not cover the question to be considered in the present case. I think there can be no

doubt that the subject-matter of a mortgagor''s suit for redemption is his right to redeem or his equity of redemption. I cannot conceive what else

could be the subject-matter of the suit. Reference has been made to Sekharan v. Eacharan (1909) 20 M.L.J. 121. There it was held that the equity

of redemption was ""the subject-matter in dispute"" for the purpose of the Court-Fees Act. It was suggested in the argument that the decision should

be limited to the construction of the particular words in that Act. It seems to me that there is no real distinction, and that in a suit for redemption the

equity of redemption is equally ""the subject-matter in dispute"" within the Court-Fees Act and the ""subject-matter of the suit"" under Order 33, Rule

The value of the equity of redemption to which the petitioner is entitled must therefore be excluded in determining whether he is a ""pauper"" as

defined in the latter part of the explanation. The Subordinate Judge will have to enquire whether the petitioner is entitled to any other property

worth Rs. 100. The case is remitted to him for this purpose and for disposal in the light of the above observations. The costs of this revision

petition will abide the result of his finding.