The petitioners are the wife and children of R.V. Revanna, the petitioner in P.Misc.No.37/2004, on the file of the City Civil Court, Bangalore. On 28.07.2004, R.V. Revanna presented a petition under Order 33 Rule 1 read with Order 7 Rule 1 of CPC, to sue the respondents, as an indigent person. The plaint part of the application prayed for the relief of declaration that the sale deed dated 04.01.2003 registered as document No. 17977/2002-03 in the Office of the Sub-Registrar, Kengeri executed in favour of the 1st respondent–Prakash Prabhu, with respect to the plaint ‘B’ schedule property is void and for consequential reliefs.

2. The respondent herein, the 2nd respondent in P.Misc 37/2004, has filed statement of objections inter-alia contending that, R.V. Revanna is not an indigent person falling within the purview of Rule 1 of Order 33 CPC. The 1st respondent – Prakash Prabhu, having not appeared despite service was placed ex-parte.

3. The petition having been posted for receiving evidence about the applicant’s indigency, an affidavit of R.V. Revanna was filed. The petitioner – R.V. Revanna died on 25.11.2008 i.e., before his cross-examination.

4. The petitioners herein filed an application on 18.12.2008 under Order 22 Rule 4 CPC to permit them to come on record as legal representatives of the deceased petitioner. The respondent has filed statement of objections contending that the petitioners have no right to come on record and continue the petition in place of the deceased petitioner and that, the main petition does not survive for consideration.

5. The trial court has held that, the financial status of the deceased petitioner being personal in nature, the legal heirs cannot seek substitution. The application filed by the petitioners was dismissed. However, 15 days time was granted to the petitioners to pay the court fee by making it clear that in case of default, the petition shall abate. This writ petition is directed against the said order.

6. Section 26 of CPC provides how a suit is to be instituted. Every suit, as stated in the said section, shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. R.V. Revanna has presented the application-cum-plaint under Order 33 Rule 1 read with Order 7 Rule 1 of CPC. It was not a suit instituted by the presentation of a plaint, but the suit was instituted in the manner prescribed by Order 33. It would be appropriate to notice the relevant Rules. Rule 1 reads as follows:

“1. Suits may be instituted by indigent person;-

Subject to the following provisions, any suit may be instituted by an indigent person.

Explanation I: 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

(b) Where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than property exempt from attachment in execution of a decree, and the subject matter of the suit.

Explanation II: xxxxx

Explanation III: xxxxx

Rules 2 and 3 which provide for institution, read as follows:

“2. Contents of application: Every application for permission to sue as an indigent person shall contain the particulars required in regard to plaints in suits; a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.

3. Presentation of application: Notwithstanding anything contained in these rules, the application shall be presented to the court by the applicant in person, unless he is exempted from appearing in court, in which case the application may be presented by an authorized agent who can answer all material questions relating to the application, and who