Judgment

VENKATARAMIAH, J.:- This appeal by special leave is filed against the order of the High Court of Delhi dated May 3, 1982 in C. M. No. 525 of 1981 ( in C. M. (Pauper) No. 650 of 1980) by which the High Court refused permission to the appellant to prosecute an appeal which he had presented earlier as an indigent person after paying the court-fee within such time as may be fixed by the Court as provided in Rule 2 of Order 44 of the Code of Civil Procedure. 1908.

2. The facts of the case are these: The appellant filed a suit questioning the validity of an order dismissing him from the Post of Senior Rakshak / Head Constable, Railway Protection Force, Delhi in the court of the Sub-Judge Ist Class. Delhi as an indigent person. That suit Was dismissed after contest. Against the decree passed in the suit, he filed an appeal before the High Court of Delhi in C. M. (Pauper) No. 650 of 1980 along with an application under Rule 1 of Order 44 of the Code of Civil Procedure requesting that he may be allowed to appeal as an indigent person. That application was dismissed by the learned single Judge of the High Court by a one word order stating Dismissed on May 14, 1981. The appellant thereupon made an application No. C. M. 525 of 1981 praying for permission to pay the requisite court-fee and to prosecute the appeal. That application was also dismissed by the same learned Judge by the order dated May 3, 1982 in which he inter alia observed thus :

"The application for leave to appeal as an indigent person was dismissed on merits, and not on the ground that the applicant was not indigent person. I could not have dismissed it on the latter ground without holding an inquiry as to the means of the applicant. Since that application was dismissed on merits, there was no question of granting time to the applicant to pay court-fee".

3. This appeal is directed against the above order. A reading of the aforesaid order shows that the learned Judge was of the view that he had dismissed the appeal itself on merits on May 14. 1981 when he dismissed the application for leave to appeal as an indigent person. The question which now arises for consideration is whether such an order can be passed at the stage at which it was passed after the amendment of the Code of Civil Procedure by the Code of Civil Procedure (Amendment) Act. 1976 (Act No. 104 of 1976) which came into force with effect from February 1. 1977. Prior to the abovesaid amendment. Order 44 of the Code of Civil Procedure contained two Rules. Rule 1 of Order 44 of the Code of Civil Procedure which is material for purposes of this case read as follows :

"1. (1) Any person entitled to prefer an appeal who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper, subject in all matters, including the presentation of such application, to the provisions relating to suits by, paupers, in so far as those provisions are applicable.

(2) The Appellate Court after fixing a day for hearing the applicant or his pleader and hearing him accordingly if he appears on that day, and upon a perusal of the application and of the judgment and decree appealed from, shall reject the application. unless it sees reason to think that the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust".

4. It is seen from the above provision (as it stood prior to its amendment) that an appellant who wished to file an appeal without payment of the requisite court-fee had to file an application accompanied by the memorandum of appeal Praying for permission to prosecute the appeal as an indigent person. On the presentation of such an application, the appellate court after fixing a day for hearing the application or his pleader and hearing him accordingly if he appears on that day and upon a perusal of the application and of the judgment and decree appealed from was obliged to r