Krishnaswami Nayudu, J.-There appears to be a conflict of opinion on the question whether when once leave was refused to an applicant to sue in forma pauperis and time was granted to pay the Court-fees which was not complied with and as a consequence of which non-compliance the original petition itself was dismissed, such a dismissal is no bar to the maintainability of a Civil Revision Petition against the original order refusing leave to sue in forma pauperis even though the subsequent order of dismissal has not been challenged in any appeal or revision.

There are two decisions holding contrary opinions, one of Panchapakesa Ayyar, J. in Bommisetty Ramayamma, In re1, relying on a Full Bench ruling in Satyanarayanacharyulu 2v. Ramalingam,2, and that of Basheer Ahmed Sayeed, J., in Munian v. Kesava Pandithan3. I consider, therefore, that this appeal requires to be heard by a Bench. Place the papers before the Hon’ble the Chief Justice for orders as to posting before a bench.

In pursuance of the order of reference the appeal came on for hearing before a Bench:

The Judgment of the Court was delivered by

Govinda Menon, J.-O.P.No.21 of 1950 on the file of the Court of the Subordinate Judge of Ottapalam was an application by the present appellant under Order 33, rule 1, Civil Procedure Code, to allow him to sue in forma pauperis for the grant of the various reliefs claimed therein, viz., a decree in his favour on behalf of his tarwad, for redemption and recovery of possession of the properties from respondents 1 and 2, future mesne profits at the rate of 1200 paras of paddy from the first respondent and also other reliefs. On objections put forward by respondents 1 and 2, the learned Subordinate Judge proceeded to act under rules 6 and 7 of Order 33 and after examining the petitioner and hearing the respondents’ counsel on the points urged, held that it has not been shown that the petitioner is not possessed of sufficient means to enable him to pay the Court-fee prescribed by law for the plaint, and further that the allegations in the petition do not show a cause of action. On both these grounds he came to the conclusion that the petition was not maintainable, but gave the petitioner a period of two weeks from 19th November, 1951, for payment of the requisite Court-fee, adjourning the petition to 8th December, 1951. The petitioner did not comply with the order to pay the Court-fee and therefore his application was dismissed. Thereafter, on 25th December, 1952, the present appeal has been filed under Order 43, rule 1(nn). The appeal has been referred to a Bench on a preliminary objection raised by the respondents that the same is incompetent inasmuch as the rejection of the petition for leave to sue as a pauper amounts to a rejection of a plaint, as contemplated in section 2 (2) from which an appeal lies; and since no proceedings have been taken in that regard, the present appeal is unsustainable. The learned Judge before whom the appeal came up in the first instance was of opinion that there is a conflict between two decisions of this Court, Bommisetty Ramayamma, In re1, and Munian v. Kesava Pandithan2, to which one of us, Basheer Ahmed Sayeed, J., was a party, and it is on this ground that the appeal comes before us.

Before dealing with the conflict of decisions, it is necessary to remark that there is one vital distinction between the facts of those cases and what obtains here, namely, that both these decisions were given in Civil Revision Petitions, which were preferred against orders refusing leave to sue as a pauper on the ground that the applicant was not a pauper, from which order no appeal is provided. But where the application is rejected on the ground that the allegations do not show a cause of action, an appeal is provided under Order 43, rule 1(nn), and it is difficult to see how such an appeal can be refused a hearing on account of a circumstance, which has taken place subsequently. It may also be mentioned that Order 33 does

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