The property which is the subject matter of the suit is excluded from being included in the assets of the appellant for determining whether he or she is an indigent person.

( 1 ) THIS is an appeal directed against an order passed in a petition under Order 33 Rule 1, Civil Procedure Code which is pending on the original side of this Court The petitioner in that case I. P. A. No. 19/84, has sued for return of her istridhan or alternatively for the recovery of a sum of 2,39,157. 00 being the value of that intridhan . She has claimed to be an indigent person not in a position to pay the Court fees required for a suit of this nature. But respondent in that case is the husband of the appellant. Amongst the property claimed are 5 National Savings Certificates of 7 years maturity. Each certificate is of Rs. 1,000. 00 and the maturity value is Rs. 10,000. 00. These certificates are Nos. 364930 to 364934. The respondent, or rather the ex-husband, as the divorce has now been granted, offered these 5 certificates to the petitioner during her cross-examination. The learned Court had to decide whether the offer of these 5 certificates meant that the petitioner ceased to be an indigent person because this" property of value between Rs. 5,000. 00 and Rs. 10,000. 00 would mean that she would be in a position to pay the court fee.

( 2 ) THE Court came to the conclusion that the offer was tantamount to a partial decree in favour of the petitioner and, therefore, a court fee was payable. It appears that Explanation II appearing in Order 33 Rule 1 of the Civil Procedure Code was also referred to because it is provided there that if a person acquires property during the pendency of the application that too has to be taken into account in deciding the question whether a person is an indigent person.

( 3 ) IT appears to us that this matter is really covered by Explanation I, which excludes the property which is the subject matter of the suit from being included in the assets of the appellant for determining a question whether he or she is an indigent person. [in para 4, Explanations are reproduced]

( 4 ) THE first explanation shows that a person is an indigent person, if he has not sufficient means to pay the court fee. For determining this amount, the exempted property and the subject matter of the suit has to be excluded. These certificates are the subject matter of the suit and, therefore, are not to be taken into consideration for determining whether she has means to pay the court fee. The mere fact that she gets them either during or after the suit, is immaterial. They will still continue to be the property which is the subject matter of the suit.

( 5 ) IF any other reasoning is adopted, the result would be that we may have to say that the entire amount of the dowry claimed in the suit, which amounts to Rs. 2,39,157. 00 according to appellant, is her property therefore she is clearly possessed of sufficient means to paythe court fee. However, as the purpose of the suit is to recover this very amount, i. e. the dowry or istridhan amounting to Rs. 2,39,157. 00 this amount cannot be taken into consideration because mere deprivation would otherwise debar the petitioner to recover the amount, merely because the court fee cannot be paid.

( 6 ) FURTHERMORE, even if we apply the second Explanation, for arguments sake, the certificates are to be encashed in 1986 as they are *7 years certificates . Of course they may be sold at a loss or got discharged at a loss. But that is not the object of realisation of the court fee. These certificates do not appear to be "property" in the real meaning to be given to this woid in explanation II.

( 7 ) THIS explanation states that if any property is acquired by a person, he or she will have more means and therefore cease to be an indigent person. That is legal effect to this explanation. As it happens, these certicertificates were already belonging to the petitioner, they were only in the possession of the first respondent and I he suit is for recovering them. She has actually not acquired new property, but if we assume that she has, nevertheless that property is real