The exemption from paying court fees is an exception made by the Legislature in favor of pauper plaintiffs or appellants and cannot be extended to other parties such as defendants or respondents filing review petitions.

Abdur Rahman, J.

1. Four appeals were filed in this Court in the ordinary form. They were heard ex parte and accepted by a Division Bench composed of Venkataramana Rao, J. and myself on the 20th November, 1941, after arguments had been addressed to us by Mr. Sitarama Rao on behalf of the appellant. The petitioner, who was one of the respondents and who was by our judgment also held liable for the debts, presented four petitions for review in forma pauperis after the retirement of Venkataramana Rao, J. The first question to decide is whether these petitions are legally competent and the petitioner can be allowed to prosecute them as a pauper.

2. Learned Counsel for the petitioner contends in the first instance that although his application was not in terms covered either by Orders 33 or 44 of the Code of Civil Procedure yet it is possible for this Court to permit him to make an application for review in the same way as a defendant was allowed by Wilson, J., in Doorgachurn Doss v. Nittokilly Dossee I.L.R. (1880) Cal. 819, to defend a suit in forma pauperis. His second contention is that if a Court has power to allow a suit initially filed with the necessary court-fee to be continued in forma pauperis as held in Thomson v. Calcutta Tramway Company I.L.R. (1893) Cal. 319 and Neelikandi Moidin v. Kunhayissa (1935) 43 L.W. 380, there is no reason why a petition for review should not be allowed to be filed on the same analogy particularly when a petition for review was nothing but a continuation of the suit and could legitimately take the place of a plaint filed under Order 33, Civil Procedure Code and of a memorandum of appeal under Order 44. Reliance was placed in this connection on certain observations of Gentle, J., in Palani Gramani v. Manickammal (1937) 47 L.W. 731, where in reading the provisions of Order 33, Civil Procedure Code, along with certain original side rules of this Court, the learned Judge took the view that applications for grant of probate or letters of administration could fall within the purview of Order 33 and the exemption from paying court-fee could be extended also to succession duty. My attention was also drawn in this connection to an unreported decision of Curgenven, J., referred to in Satyamurthi Aiyars Court-Fees Act (1936 edition) at pages 465 and 466, where the learned Judge took the view that it was possible for an applicant who was a pauper to make an application for review in forma pauperis although he might not have preferred the appeal as a pauper.

3. The first contention advanced on behalf of the petitioner is based, as stated above, on the decision of Wilson, J., in Doorgachurn Dosss case I.L.R. (1880) Cal. 819. There is nothing in Order 33 which can, in my view, help a defendant in asking for the indulgence granted to persons who wish to file suits in forma pauperis except perhaps in cases where he (i.e., the defendant) may be, for the purposes of the suit, regarded as a plaintiff. The words in Order 33, rule 1 are unambiguous and cannot be construed so as to cover a defendant or a defence. The decision in Doorgachurn Dosss case I.L.R. (1880) Cal. 819 gives no reasons and is based on English Practice in Chancery which has no application to this country, where a plaintiff, unlike in England, is required to pay court-fee on his plaint. As for the second contention, the decisions in Thomsons case I.L.R. (1893) Cal. 319, or Neelikandi Moidins case (1935) 43 L.W. 380 are, in my opinion, of no assistance in the present case. The decision in the first of these cases was given in conformity with what the learned Judge considered to be the practice of the Calcutta Court but in any case the decision was correct as pointed out by Varadachariar, J., in the latter case, as the provisions of Order 7, rule 11, Civil Procedure Code had "to be read consistently with the powers possessed by the Court under other provisions of the law" and as no useful purpose could be served in insisting that the Court must