JUDGMENT - J. R. MUDHOLKAR J. :

This is an application for revision under S. 115 of the Civil Procedure Code of an order of the Second Additional District Judge, Amraoti, dismissing the applicants application for leave to appeal as pauper.

(2) The applicant preferred an application before the District Court Amraoti on 14-3-1955. The application went up before Mr. R. N. Bongirwar, who was the then Second Additional District Judge, Amraoti. On 16-4-1955 the learned Judge made the following order:

"There is reason to believe that the trial Courts decree is erroneous. Notice of the pauper application be given to the non-applicants and Collector as similar to O. 33 R. 6 (sic)."

When the matter came up again before the Second Additional District Judge Mr. Bongirwar was no longer there and his place was taken by Mr. V. W. Samudra. Before Mr. Samudra a contention was raised on behalf of the non-applicant that the decree appealed from was not contrary to law or usage having the force of law or was not otherwise erroneous) or unjust. This contention was entertained considered by Mr. Samudra who ultimately accepted it. In the revision application before this Court against the order of Mr. Samudra it was contended on behalf of the applicant that the Court having once expressed an opinion that there was reason to believe that the trial Courts decree was erroneous it was not entitled to consider the matter afresh even though the non-applicant had not been heard before the Court expressed its view on the matter. According to the learned counsel for the applicant Mr. Samudra acted without jurisdiction in going into the question and that therefore his order refusing leave to the applicant to appeal as pauper should be set aside.

(3) This matter came up before one of us (Mudholkar J.) but was referred to a Division Bench on the ground that there was a conflict of authorities on the point and as the matter was of sufficient importance it needed consideration at the hands of a Division Bench. That is how the matter has come up before us.

(4) It was held by Pollock J. in Bhairanlal v. Ambika Prasad, ILR 1937 Nag 463) that in an appeal in which permission to appeal in forma pauperis has been given ex parte, the respondent is entitled to impeach the permission given by attacking the finding of pauperism or to urge that the decree is not contrary to law or usage laving the force of law or is not otherwise erroneous or unjust. In coming to this conclusion, the learned Judge relied upon the decisions in Benarasi Das v. Munshi Ram, ILR 15 Lah 132, Mt. Powdhari v. Mt. Ram Sanwari, ILR 57 All 440 and Somasundaram Chettiar v. Arunchalam Chettiar ILR 55 Mad 982. We may point out that in the Lahore case the Chief Justice who ordered notice of the application to issue did not state in his order that he considered that the decree sought to be appealed from was contrary to law or to some usage having the force of law or was otherwise erronenous or unjust. No doubt in the course of their judgment the learned Judges have accepted the principle that an order which is passed behind the . back of a party cannot operate to the prejudice of that party but that principle need not have been invoked at all in that case because, in point of fact no order whatsoever to the "prejudice of any party" had been passed by the admitting Judge. Apart from that, as we will show hereafter, duty is cast upon the Court to be satisfied as to whether the decree in a case of this kind is contrary to law or usage having the force of law or is otherwise erroneous or unjust, and that according to the law as it stood prior to its amendment in the year 1955, not even the appellant had a right to be heard before the Court expressed its opinion on the matter.

(5) Even in the Allahabad case it would appear that the Judges who ordered notice of the appeal to issue had not considered the question as to whether the requirements of the proviso to rule 1 of O. 44 of the Civil Procedure Code were satisfied

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