An application to dispauper can be filed against the legal representative or assignee of the original plaintiff if they claim under him, and the court may order them to pay the court-fee.

Bhashyam Ayyangar, J.

1. In this case the plaintiff who had been permitted to sue as a pauper died pending the suit and his-concubines son and heir who claimed to have succeeded to the subject-matter of the suit was added in his place as plaintiff 2 and permitted to proceed with the suit. Defendant 1 then applied under Order 33, Rule 9. Civil P. C, to dispauper the substituted plaintiff on the ground that he was possessed of sufficient means to pay the court-fee. The lower Court took evidence, and, being satisfied that the newly added plaintiff was not a pauper, directed him to pay the court-fee due on the plaint. He now seeks a revision of that order.

2. I am not prepared to interfere with the finding of the lower Court that the above plaintiff is not a pauper. The question is whether on this footing he can be dispaupered under Order 33, Rule 9, and ordered to pay the court-fee which would have been paid by the original plaintiff if he had not been permitted to sue as a pauper.

3. Now it was first suggested that an application to dispauper can only be filed against the particular plaintiff who was permitted to sue as a pauper and not against anybody who might take his place such as his legal representative or assignee. But this suggestion cannot in my opinion be sustained for, under Section 146 of the Code, save as otherwise provided which is not the case here, any application which can be made by or against a person can also be made or against any person claiming under him. If it was open to the defendant to apply to dispauper the original plaintiff for proper reasons, it must also be open to him to apply to dispauper his legal representative claiming under him for similar reasons.

4. The learned advocate for the petitioner then relied on the decision in Sivagami Ammal v. Gopalasami Udayar A.I.R. 1925 Mad 765, but that case is easily distinguishable from the present. What was therein decided was that when the plaintiff in a suit instituted in forma pauperis dies, and his -executor continues the suit, the executor is not liable to be dispaupered because he is personally not a pauper. The decision is expressly based on the ground that the person who wanted to continue the suit in that case wanted to do so in his capacity as executor and not in his own personal capacity. But in this case the petitioner does not seek to continue the suit in any other capacity than his own personal capacity. He does not represent any other person or body but himself in seeking to go on with the suit. It seems to me therefore that the case cited has no application to this case.

5. The view taken by the lower Court is not only supported by the decision in Manaji Rajuji v. Kandoo Baloo 1921] 36 Bom. 279, but also by the observations of Jackson, J., in Radhakrishna Ayyar, In Re: A.I.R. 1925 Mad. 819 concurring with the decision in Manaji Rajuji v. Kandoo Baloo [1921] 36 Bom. 279.

6. A decision of Kumaraswami Sastri, J. reported in Ammikannu Ammal v. Damoodhara Mudaliar A.I.R. 1928 Mad. 66 was also cited, but it is similar to the case in Sivagami Ammal v. Gopalnsami Udayar, and distinguishable for the reasons stated with reference to the latter.

7. On the whole I am clear that the order of the lower Court is right. The revision petition is dismissed with costs. The lower Court may grant a reasonable time for the payment of the court-fee.