An application to sue as a pauper is a composite document, and if the application is rejected, the plaint still remains. The Court may, in its discretion, allow the petitioner to pay the requisite fee, and in such a case, the suit shall be deemed to have been instituted on the date of presentation of the application.

PANIGRAHI, J.

( 1 ) THIS is an appeal against the judgment of the Additional Subordinate Judge, cuttack, granting a decree to the plaintiff in a suit for recovery of Rs. 7530 as her dower debt due from the estate of her deceased husband. The point debated on this appeal is whether a Court, while rejecting an application to sue in forma pauperis, can grant time to the petitioner for payment of court-fee and whether in such a case the suit shall be deemed to have been instituted on the day of the presentation of the pauper application.

( 2 ) THE facts briefly are that the plaintiff started her suit with an application under Order 33, Rule 2, Civil P. C. praying for permission to sue in forma pauperis. That application sets out in detail all the particulars required for a plaint, states the cause of action and the relief that the plaintiff is entitled to, and in the prayer portion contains a request (1) that the petitioner be permitted to sue as a pauper; and (2) that she may be given a decree for their recovery of her dower money amounting to BS. 7530 together with costs. The learned subordinate Judge registered this application as Misc. case No. 143 of 1939 on and 27th May 1940 allowed the application of the plaintiff and registered the suit as O. S. No. 77 of 1940, The defendants went up in appeal to the High court against this order of the Subordinate Judge. The order of the Subordinate judge was reversed and the petition was remanded, by the High Court's order dated 30th October 1940, for instituting a fresh enquiry into the pauperism of the petitioner. On 8th March 1941 the Subordinate Judge restored Misc. case no. 142 of 1939 and directed that the proceedings in the original suit which had been registered as O. S. 77 of 1940 shall be stayed. The enquiry into the pauperism of the petitioner was taken up and was being adjourned from time to time till 30th October 1941 when farther proceedings in the suit were dropped; and on 20th December 1941, the petition for leave to sue as a pauper was rejected. The order of the learned Subordinate Judge reads as follows :

"hence the original application of applicant for permission to sue in forma pauperis shall stand rejected with coats and pleader's fee at rs. 16. C. C. Coar. Subordinate Judge. The applicant is now called upon to pay court-fees for the plaint by 10th January 1942. Page 2 of 10 Mt. Jinatun Nisa Bibi and Anr. vs. Mt. Idrakun Nisa and Ors. (15. 12. 1949 - ORIHC) c. C. Coar. Subordinate Judge. The point for determination is whether this order of the learned Subordinate judge is really one order or constitutes two separate orders passed at different times. The two portions are separately numbered as Orders Nos. 46 and 47 of the same date. Mr. Sen Gupta appearing for the defendant-appellants contends that these are two separate orders and that the latter order was beyond the jurisdiction of the Subordinate Judge as he became functus officio when he rejected the application to sue in forma pauperis by his order numbered as 46. The defendant, appellants went up in revision to the High Court again against the order of the Subordinate Judge permitting the plaintiff to pay court-fee,. e. , against the order numbered as 47. In dismissing the revision (civil Revn. No. 28 of 1942) Shearer J. observed that the learned Subordinate Judge in making the order complained against acted suo motu and that he was dealing with the matter simultaneously by two orders and that "it is impossible to say that the order under revision was without jurisdiction. "

Mr. Sen Gupta's contention is that this order of the High Court does not prevent him from raising the point once again in this Court in first appeal as the earlier order of the High Court was passed in revision.

( 3 ) WE allowed Mr. Sen Gupta to argue the point at length irrespective of whether or not the previous order of the High Court operated as res judicata; and after hearing him we take the same view of the proceedings as Shearer J. d