The property which is the subject-matter of the suit is excluded from being included in the assets of the applicant 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 I of the Code of Civil Procedure which is pending on the Original Side of this Court. The petitioner in that case I. P. A. No. 19 of 1974, has sued for return of her Stridhan or alternatively for the recovery of a sum of Rs. 2,39,157. 00 being the value of that Stridhan. She has claimed to be an indigent person not in a position to pay the courtfee required for a suit of this nature. The first respondent in that case is the husband of the applicant. Amongst the property claimed are five National Savings Certificates of seven years maturity. Each Certificates is of a sum of Rs. 1,000. 00 and the maturity value is Rs. 10. 000. 00. These Certificates are Nos. 364930 to 364934. The said respondent, or rather the ex-husband as the divorce has now been granted, offered these five Certificates to the petitioner during her cross-examination. The learned Court had to decided whether the offer of these five 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, the Court-fee was payable. It appears that Explanation II appearing in Order 33, Rule I of the Code was also refered 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 applicant for determining the question whether he or she is an indigent person.

( 4 ) THE three Explanations appearing in Order 33, Rule I are as follows:

"r. I Suits may be instituted in forma, pauperis. 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 succient 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 on such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject- matter of the suit. Explanation II- Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person. Explanation III- Where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity. "

( 5 ) THE first Explanation shows that a person is an indigent person if he has not sufficient means to pay the court-fee. For determination of this amount, the exempt 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.

( 6 ) 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. 2,32,l57. 00 according to the applicant, is the property of the applicant and, therefore, she is clearly possessed of sufficien