Babu Mathew P. Joseph, J.

1. Does Rule 3 of Order XXXIII, CPC applies to an application to which Rule 3 of Order XLIV, CPC applies is the question that arises for consideration in this reference?

2. The facts that are necessary for disposing of this reference are briefly stated as follows:

The applicants/appellants 1 to 3 were the plaintiffs 1 to 3 respectively in O.S.No.232 of 2007 on the files of the Subordinate Court, Thalaserry. The appellants 1 and 2 are husband and wife and the third appellant is their son. K. Sumesh, the elder son of the appellants 1 and 2 and the brother of the third appellant, died of electrocution on 30-07-2006. He was aged 18. The appellants sued the Kerala State Electricity Board and one of its officers for damages on account of the death of Sumesh. The suit was permitted to be instituted by the appellants as indigent persons. The appellants claimed Rs.5,57,000/- (Rupees five lakh fifty-seven thousand only) as damages. The court below awarded Rs.2,25,000/- (Rupees two lakh twenty-five thousand only) as damages. Dissatisfied with the quantum of damages awarded by the court below, the appellants have preferred this appeal, as indigent persons, under Order XLIV, CPC. The application for permission to appeal as indigent persons proceeds on the basis that the applicants have not acquired any property after passing the impugned decree and they have not ceased to be indigent persons since the date of the decree appealed from. This, in short, we understand from the affidavit filed by the first applicant for himself and for and on behalf of other applicants as well. The first applicant is a weaver by profession. Going by the averments made in the affidavit, it can reasonably be found that the applicants belong to a marginalized and economically challenged section of the society. That was why the court below permitted them to sue as indigent persons. The applicants hail from Pathiriyad in Kannur district. The third applicant is a student. The applicants 1 and 2 are not in a position to travel to this Court for filing the appeal. Therefore, the applicants prayed for permitting them to file the appeal through their learned counsel. The Registry has raised objection in registering the application as it was not presented by the applicants in person. The Registry placed reliance on the order dated 28-02-2012 passed by a Division Bench of this Court in In Re Kadeeja Umma (unnumbered C.M.C.P. of 2012 in unnumbered R.F.A. (Indigent) of 2012). It was held in that order that even a plaintiff who was permitted to sue as an indigent person before the court below, has to present the application to appeal as an indigent person by himself in person. The Division Bench before whom the case on hand came up for consideration with the objection of the Registry, considered the matter in the light of constitutional as well as statutory provisions and case law and disagreed with the views expressed in In Re Kadeeja Umma and found that the said decision requires reconsideration. Therefore, the Division Bench adjourned the case to be considered by a Full Bench. Thus, the case came up for consideration before us.

3. Heard Sri C.P. Peethambaran, learned counsel for the applicants/appellants and Sri R. Padmaraj, learned Government Pleader. We have also heard Advocate Dr. K.B.S. Rajan, learned Amicus Curiae.

4. Order XLIV, CPC deals with appeals by indigent persons. Rules 1 to 3 of Order XLIV, CPC reads as follows:

“1. Who may appeal as an indigent person. –

(1) Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as an indigent person, subject, in all matters, including the presentation of such application, to the provisions relating to suits by indigent persons, in so far as those provisions are applicable.

2. Grant of time for payment of Court-fee. – Where an application is rejected