The main legal point established in the judgment is that the appellate court would decline to interfere when the determination complained of is the result of the exercise of discretion by the judge in a matter that was a proper subject for the exercise of that discretion.

Waller, J.

1. This is an appeal against an order of Krishnan, J., rejecting an application for leave to file a memorandum of objections in forma pauperis. It is argued that no appeal lies against such an order. There are no doubt, some decisions to that effect e. g., Appasami Pillai v. Somasundara Mudaliar [1908] 26 Mad. 437 and Banno Bibi v. Mehdi Husain [1889] 11 All. 375. But the former has since been expressly dissented from in Tuljaram Row v. Alagappa Chettiar [1911] 35 Mad. 1 and the latter proceeded on a ratio decidendi which is no longer maintainable. The pronouncement of Sir John Edge in Jeronchad Bhogilal v. Dakare Temple Committee A.I.R. 1925 P.C. 155 is also relied on, Speaking for myself, I should welcome any clear cut definition which would render unnecessary the discussion which is at present, almost inevitable whether a particular order does or does not pass the test laid down in Tuljaram Row v. Alagappa Chettiar [1911] 35 Mad. 1, That test is never particularly easy of application and would be extremely difficult to apply in a case like this. I, however, see no reason to consider the very large question raised, by that pronouncement.

2. Assuming that there is a right of appeal against an order like this, I think that we should not interfere. The question is one of the exercise of discretion. That is, of course, not the test of non-appeal-ability, but,

When the determination complained of is merely the result of the exercise of discretion on the part of the Judge in a matter, which was a proper subject for the exercise of that discretion the appellate Court would rightly decline to interfere : De Souza v. Coles 3 M.H.C. 384.

3. Here the Judge had discretion to admit the application but he thought fit not to exercise it in the appellants favour. I think that we should decline to interfere with this order. The appeal is dismissed without costs. One month for paying the necessary fees.

Devadoss, J.

4. I agree.