The equity of redemption in a mortgaged property is exempt from the subject-matter of the suit for the purpose of determining whether a person is an indigent person under Order 44, Rule 1 of the Civil Procedure Code, 1908.

( 1 ) THE petitioner is the plaintiff. He is seeking to revise the impugned order of the lower appellate Court permitting the respondents to file the appeal as indigent persons under O. 44, R. 1 of the Civil P. C. 1908. It held that the respondents are indigent persons possessing no means to pay the requisite Court-fee.

( 2 ) IT is not in dispute that the petitioner lent money to the respondents on executing a mortgage bond and for recovery thereof the petitioner filed the suit and the trial Court passed a preliminary decree. As against that preliminary decree, the respondents filed the appeal as indigent persons and the lower Court permitted them to file the appeal as such.

( 3 ) IN this revision. Sri Murthy, learned counsel for the petitioner contended that the respondents have been in possession of the mortgage property, they have an equity of redemption: they could raise the necessary funds by either selling the property or by further hypothecating to third party to pay the requisite Court-fee and that therefore they cannot be said to be indigent persons. On the other hand, learned counsel for the respondents contended that the respondents are not possessed of any other property except the property which is subject-matter of the suit, and since the property is subject to a mortgage and also since there is already a decree nobody would come forward to lend money on the already mortgaged property. Therefore the respondents are indigent persons.

( 4 ) IN order to appreciate the rival contentions it is necessary to have close look at the relevant provisions of the Code. O. 33, R. 1 C. P. C. would apply to the enquiry contemplated under O. 44, R. 1. Order 33, R. 1 postulates that a suit may be instituted by an indigent person, subject to the provisions of the Order. Explanation I stated that:"a person is an indigent person, (a) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or. . . . . . "

( 5 ) THE contention is that the words subject-matter of the suit would not take within its ambit the equity of redemption and that therefore it cannot be said that the respondents are not possessed of sufficient means to pay the requisite Court-fee. In support thereof, the petitioner relied upon Subodh Chandra v. K. L. Bank Ltd. , AIR 1941 Cal 659. No doubt, a Division Bench of the Calcutta High Court held that the equity of redemption is not the subject-matter of the suit. Much water carrying constitutional goals has flown under the bridges in the years followed. But the question is whether the respondents can be said to be possessed of sufficient means. As already stated, it is not in dispute that except the house the respondents do not possess any property and the said property is the subject-matter of the decree under appeal. The object of O. 33, R. 1 and O. 44, R. 1, is to enable the indigent person to lay an action in a Court to vindicate his rights and when he proves that he is not possessed of sufficient means to pay the requisite Court-fee, an enablement is provided by the Code permitting him to prosecute the proceedings without paying the Court-fee.

( 6 ) IN this regard it is pertinent to remember that the people of India have heralded a Constitution unto themselves and assured equality of opportunity in securing justice social, economic and political. It is axiomatic to state that majority of people are poor and are not possessed of sufficient economic viability. It is one of the directives of the Constitution under Art. 39-A that equal opportunity shall be provided to the citizen to secure justice. To achieve the same, it directs that State shall secure the operation of legal system to promote justice on a basis of equal opportunity. . . . by suitable legislation or schemes or in any other way to ensure that opportunities for securing jus