The capacity to raise money to pay the court fee is the crux of determining whether a person is an indigent person under O.33 of the Code of Civil Procedure.

B.N. Patnaik, J.

1. Petitioner in O.P. No. 88 of 1995, on the file of the Family Court, Ernakulam, is the appellant. He challenges the order passed by the Family Court rejecting his application for leave to sue as an indigent person under O.33 of the Code of Civil Procedure. The suit proposed to be filed is one for a decree of declaration that the plaint schedule properties belong to the petitioner and also for an injunction against commission of waste and alienation by the respondent, who happens to be estranged wife of the petitioner/appellant. The suit properties are valued at Rs. 10,35,751.75/-. The court fee payable thereon is Rs. 76,381/-.

2. It is contended by the appellant that the movable and immovable properties mentioned in the plaint are worth only Rs.72,000/- and therefore he has no sufficient means to pay the prescribed court fee.

The respondent resisted the petition by stating that the appellant has sufficient means and is able to pay the required court fee.

3. The learned Judge observed that the petitioner has movable assets worth about Rs. 76,381/-. He owns 40 cents of land, the value of which would be not less than Rs.80,000/- in his own estimation. He is employed as General Manager of a private company and according to him he receives Rs.3,500/- as monthly salary. He has a post office recurring deposit of Rs.8000/- arid is subscribing to an insurance policy. The fact that he owns valuable movables would show that he is having sufficient income. Even without alienating his movable assets or immovable properties, he is in a position to pay the required court fee by pledging the insurance policy or mortgaging the immovable property or by selling the whole or a portion of his landed property. It is further found that even it he been permitted to sue as an indigent person in another case, the same is not binding on this court and more over the order passed therein is under challenge in a pending appeal. He being not an indigent person has to pay the prescribed court fee.

4. Learned counsel for the appellant has contended that there is no rule under O.33 of the code of Civil Procedure prescribing that a person should sell his property and pay court fee to save another property. The Family Court failed to notice that a competent civil court has already found that the appellant is an indigent person. The findings in the present case and that of the other court are contradictory. The court below has failed to appreciate the relevant principles of law in holding that the appellant is a person who is possessed of sufficient means to pay the court fee.

5. The only point for consideration is whether the appellant can be held to be an indigent person in terms of Explanation 1 to O.33 R.1 C.P.C. It reads as follows:

"Explanation 1 A person is an indigent person,

(a) if he is not possessed of sufficient 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 no 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."

It consists of two parts. The first part lays down that when a fee is prescribed then the applicant who desires to invoke O.33 C.P.C. should not be possessed of sufficient means to pay the fee, other than the property exempt from attachment in execution of a decree and the subject matter of the suit. The second part deals with cases where no fee is prescribed. In that case, he must not have property worth more than Rs. 1,000/- other than the property exempt from attachment in execution of decree, and the subject matter of the suit. The expression "sufficient means" came up for consideration in a number of decisions of this Court as well as other High Courts. In Janakykutty v. Varghese (1969 KLT 953); Xavier v. Kuriakose (1987 (1) KLT 176