The possession of a receiver appointed by the Magistrate under S.146, Crl. P. C., is considered as possession on behalf of the true owner of the properties, and the period of possession by the receiver cannot be reckoned as one of discontinuance of possession by the plaintiffs before the real owner of the properties is ascertained by the Court.

1. This motion is by the petitioners (who will hereafter be referred to as the plaintiffs), whose application for permission to sue as paupers has been rejected by the Court below.

2. The facts are thus: The predecessor-in-interest of the 1st defendant had, in execution of the hypothecation decree in O. S. No. 173 of 1108 on the file of the Munsiff, Changanacherry, obtained by him against Kunnappally tarwad, purchased the plaint schedule properties on 17101113 and taken delivery of them on 16121116. Though the plaintiffs' father, who was no party to those proceedings, obstructed the delivery, he was overruled and delivery was effected on 16121116. The dispute as to possession survived the delivery proceedings and ultimately culminated in M. C. No. 13 of 1119 (1943) before the Sub-Divisional Magistrate, Kottayam, under S.128 of the Travancore Criminal Procedure Code, which corresponded with S.145 of the Indian Code. The Magistrate, by his order dated 28101946 expressed inability to decide as to the party in possession and therefore ordered continuance of attachment of the properties and the receiving order "until a competent Court has determined the rights of the parties thereto or the person entitled to possession thereof." On the eve of expiry of three years after the Magistrate's order, the 1st defendant instituted O. S. No. 65 of 1125 on the file of the District Court, Kottayam, against the plaintiffs' predecessor for declaration of title and recovery of possession from the receiver. That suit was tried by the Subordinate Judge, Kottayam, who found title and possession of the properties with the 1st defendant. The plaintiffs took the matter in appeal before this Court (in A. S. No. 218 of 1959) which, by the judgment, Ext. D2, dated 23101963, left the question of title open between parties, and found the delivery of 1116 aforesaid to be real. A fresh suit to determine the rights of the parties thus became inevitable; for a mere delivery by Court, as has been observed by the Privy Council in Karan Singh v. Raja Bakar Ali Khan 9 I. A. 99 will not give a title, and, as observed by me in CRP. No. 351 of 1967 since reported in 1967 KLT. 667, will not affect the title of the true owner who was no party thereto. On 5-2-1964, the plaintiffs presented this application for permission to sue as paupers for declaration of their title to the property and for recovery thereof from the receiver. The Principal Subordinate Judge, Kottayam, held:

"Under 0.33 R.5(d) (i), 'where the suit appears to be barred by any law the court shall reject an application for permission to sue as a pauper.' The petitioner was examined as P. W.1. He would admit that he has no fresh evidence other than what his father had tendered in the prior suit. The court has power to reject an application for permission to sue in forma pauperis where the claim is prima facie barred by limitation or is res judicata etc. But in considering the question whether the applicant has a cause of action or not, the court has to look only to the allegations made by the applicant, and cannot enter to the merits of the claim. It is open to the court to consider not only the allegations contained in the plaint, but also the facts appearing in the examination of the applicant. It has come out in the deposition of the petitioner that he has no evidence worth the name to be adduced; and the same contentions were raised and agitated by his father in the prior suit. Therefore. I find that this petition is not maintainable. It is hence, dismissed."

The prior suit referred to being O. S. No. 65 of 1125 which left open the right (title) to the properties, there cannot be a bar of res judicata. The Subordinate Judge has riot indicated the law that bars a re-agitation of the question which has teen expressly left open in a prior suit. The plaintiffs went in appeal before the District Judge, Kottayam, who dismissed the appeal with costs, observing:

"This suit was plainly filed on account o