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Judgment
Waller, J.—This is an appeal against an order of Krishnan, J., rejecting an application for leave to file a memorandum of objections in forma
pauperis. It is argued that no appeal lies against such an order. There are no doubt, some decisions to that effect e. g., Appasami Pillai v.
Somasundara Mudaliar [1908] 26 Mad. 437 and Banno Bibi v. Mehdi Husain [1889] 11 All. 375. But the former has since been expressly
dissented from in Tuljaram Row v. Alagappa Chettiar [1911] 35 Mad. 1 and the latter proceeded on a ratio decidendi which is no longer
maintainable. The pronouncemant of Sir John Edge in AIR 1925 155 (Privy Council) is also relied on, Speaking for myself, I should welcome any
clear cut definition which would render unnecessary the discussion which is at present, almost inevitable whether a particular order does or does
not pass the test laid down in Tuljaram Row v. Alagappa Chettiar [1911] 35 Mad. 1, That test is never particularly easy of application and would
be extremely difficult to apply in a case like this. I, however, see no reason to consider the very large question raised, by that pronouncement.
Assuming that there is a right of appeal against an order like this, I think that we should not interfere. The question is one of the exercise of
discretion. That is, of course, not the test of non-appealability, but,
When the determination complained of is merely the result of the exercise of discretion on the part of the Judge in a matter, which was a proper
subject for the exercise of that discretion the appellate Court would rightly decline to interfere : De Souza v. Coles 3 M.H.C. 384.
Here the Judge had discretion to admit the application but he thought fit not to exercise it in the appellant''s favour. I think that we should decline
to interfere with this order. The appeal is dismissed without costs. One month for paying the necessary fees.
Devadoss, J.
I agree.