Full Judgment
Bennet, J.
1. This is an application by the plaintiff Rajdeo Singh in revision against an order of the Subordinate Judge passed under Order 33, Rule 9, declaring that he must pay the requisite court-fee on the plaint by a certain date. There was a proceeding by which the plaintiff applied to Hue as a pauper and his application was granted. Subsequently to that, on 7th. January, 1933, the certified guardian of the plaintiff hypothecated a fractional share of the plaintiff in certain property for Rs. 2,240, out of which Rs. 1,800 was deposited in Court to have a certain sale set aside, and the balance of the money remained with the plaintiff's guardian. The defendant then applied under Order 33, Rule 9 for the plaintiff to be dispaupered. The application has been allowed under Sub-rule (b) of that rule which states that a plaintiff should be dispaupered 'if it appears that his means are such that he ought not to continue to sue-as a pauper.' The Court has found that the subesquent mortgage for a considerable sum of a fractional share of the disputed property shows that the plaintiff is in possession of this share. The plaintiff and his brother owned shares in six villages. The plaintiff's brother executed a deed of gift apparently in favour of the defendants who entered into possession of that share. The present suit has been brought by the plaintiff claiming that the deed of gift should be set aside., and also alleging that the defendants entered into' possession not only of the share under the deed of gift but also of the share belonging to the plaintiff. The defendants allege that they took possession only of the share of the plaintiff's brother and not of the share of the plaintiff. The Court below has found that the plaintiff is in possession of his share and that the defendants are not in possession of that share. One objection which has beer taken to the finding is that that question is one which will be determined in the suit. It is therefore suggested by learned Counsel that such a question cannot be decided in an application under Order 33. I know of no reason why this should be so. The mere fact that the issue will be decided again in the suit is no reason why it should not be decided in the proceeding for dispaupering. A decision of course in the proceeding for dispaupering will not act as res judicata in the case when the issue is before the Court as an issue in the suit, as the proceeding for dispaupering is not a 'former suit' within the meaning of Section 11 C.P.C. This disposes of the first and second grounds of revision.
2. The last ground argued was that an order dispaupering the plaintiff cannot operate retrospectively in respect of payment of court fees, and court fees could be realised from the plaintiff at the time of passing the decree. This argument is said to be founded on a Madras ruling. But it appears to me that Rule 11 of Order 33 is conclusive on the point. This rule states that if a plaintiff is dispaupered the Court shall order the plaintiff to pay the court fees. The Court therefore has made a correct order to that effect.
3. Learned Counsel also addressed me in regard to the terms of Rule 1, explanation, and he argued that the Court below was wrong in holding that the possession of a part of the subject matter of the suit should be considered. In the explanation to Rule (1) there are two clauses. The first clause applies where there is a fee prescribed for the plaint. There is such a fee in the present case. Therefore only the wording of that clause can be taken into consideration. The second clause is separated by the disjunctive conjunction 'or' and the second clause applies where there is no fee prescribed for the plaint. In that second clause there is a reference to 'the subject matter of the suit.' Those words cannot be imported from the second clause into the first clause. The argument therefore of the learned Counsel based on the explanation to Rule (1) is unsound. The third ground of revision is that when a plaintiff has been declared a pauper res judicata prevents the question from being reopened. This point is contrary to Rule 9, which provides for the question being reopened on any one of three grounds. For these reasons I see no merit in this revision, and I dismiss it.