ORDER :

R. DEVDAS, J.

1. By order dated 31.05.2018, this Court had directed enquiry under Order XLIV Rule 3 (2) of CPC and therefore Registrar (Judicial) was directed to hold a enquiry on the application and submit a report after recorded evidence for proceeding further. A report dated 26.10.2018 submitted by the Additional Deputy Commissioner, Bengaluru has been considered along with the examination and cross-examination of the petitioner.

2. The contention of the learned counsel for the respondents is that when it is an admitted position that the petitioner is the owner of an immovable property bearing No.62/3, 9th Cross, Wilson Garden, Bengaluru, which measures 20 x 43 feet consisting of ground + two floors, the petitioner cannot contend that she is not having sufficient means to pay the Court fee. It is contended by the learned counsel for the respondents that the petitioner is in a position to mortgage the property or portion of the property to raise funds and pay the Court fee and the petitioner can repay the loan secured by mortgaging the property out of the newly constructed second floor and in addition, the sons are well placed, even one of the daughter is also well placed and therefore the petitioner can seek funds from the sons and daughters for paying the Court fee.

3. Per contra, the learned counsel for the petitioner draws the attention of this Court to Order XXXIII Rule 1(a) of CPC and submits that a person can be considered as indigent person, if he or she is not possessed of sufficient means to enable him or her to pay the Court fee prescribed by law for the plaint in such suit, and in this case, the appeal. Learned counsel places reliance on the following judgments:

(iii) Shivarudrappa and Another Vs. Chinnayallappa and Another, reported in (1992) 2 Kant LJ 429.

4. Heard the learned counsels and perused the petition papers.

5. On perusing the judgments cited by the learned counsel for the petitioner, this Court finds that in the case of Mathai M. Paikeday (supra) the Hon'ble Supreme Court has considered the provisions of Order XXXIII Rule 1 and Explanation I and has summed up that an indigent person is one who is either not possessed of sufficient means to pay court fee when such fee is prescribed by law, or is not entitled to property worth one thousand rupees when such court fee is not prescribed. In both the cases, the property exempted from attachment in execution of a decree and the subject matter of the suit shall not be taken into account to calculate financial worth or ability of such indigent person. Further, it has been held that the factors such as person's employment status and total income including retirement benefits in the form of pension, ownership of realizable unencumbered assets, and person's total in debtness and financial assistance received from the family member or close friends can be taken into account in order to determine whether a person is possessed of sufficient means or indigent to pay requisite court fee.

6. In the case of Smt. T. Jayamma (supra), this Court has noticed another decision in the case of Prabharakan Nair Vs. K. P. Neelakanthan Pillai, reported in AIR 1988 KERALA 267, wherein, it has been held as follows:

(i) Mathai M. Paikeday Vs. C. K. Antony, reported in (2011) 13 SCC 174,

(ii) Smt. T. Jayamma Vs. Bangalore University, by its Registrar and others, reported in ILR 2000 KAR 1528

"The benefit of Order 33, CPC is conferred on persons without "sufficient means" and not without any means at all. Pauperism is not a prerequisite for the leave. What is contemplated is not possession of property but sufficient means. Capacity to raise money and not actual possession of property alone is what the Court has to look into. What is intended is not capacity to raise funds by any means whatsoever by begging, borrowing or stealing or by any other hook or crook, but by normal and available lawful means. It is not an essentiality that one should deprive himself of the sole means of