The main legal point established in the judgment is the interpretation and application of the provisions of O. XLIV and O. XXXIII of the Code of Civil Procedure, 1908 in determining the indigency of the appellant and allowing him to file the appeal as an indigent person.

1. This is an application filed by Jagga Singh, applicant under O. XLIV read with the provisions of O. XXXIII of the Code of Civil Procedure, 1908 seeking permission to prefer the present appeal as an indigent person. When the matter came up for consideration on the last date of hearing it was pointed out that the learned lower appellate Court has also entertained such an application permitting the appellant to file appeal as an indigent person. Accordingly, the aforementioned order was required to be placed on the file, which has now been done by filing C. M. No. 1333 C of 2006. Copy of the order dated 17-4-2004 shows that after considering various contentions, the learned lower appellate Court has concluded that the appellant was not in a position to pay the requisite court fee prescribed for filing the appeal. The view of the appellate Court is discernible from para 9 of the order which reads as under :

"I have considered the contentions of both the sides in the light of evidence on record. In the respective affidavits both the parties have struck to their respective stand taken in their pleadings. In the cross-examination, however, Sadha Singh failed to bring any evidence which may support the application of Jagga Singh. He failed to tell for want of knowledge how much land Jagga Singh applicant had in the village. He expressed ignorance even as to the fact of sale of any land by Jagga Singh to Ravinder Pal Singh. In his own statement Ex. AW 2/A Jagga Singh not only reiterated his stand as taken in the application but also stood well in the cross-examination by stating that he did not receive consideration from Ravinder Pal Singh qua the land he has already been sold to him and that he has got now no land in village Ghanjan Kalan. In cross-examination Jagtar Singh as RW 1 has admitted that Jagga Singh has got no land except the land in dispute. This witness admitted that sale proceeds of land allegedly sold by Jagga Singh in favour of Ravinder Pal Singh were not given by the latter to him in his presence. Collector report dated 29-11-2002 has further confirmed that Jagga Singh has no land. Therefore, there is sufficient material in support of the fact that Jagga Singh is not in a position to pay the requisite Court fee prescribed for filing the appeal. The property which is the subject-matter of the suit cannot be taken into account while considering such application as per the settled position of law in this respect. Applicant cannot be compelled to withdraw the amount deposited by the respondents on account of balance sale consideration in the Court of Civil Judge (Sr. Division), Ferozpur for payment to the requisite Court fee to his detriment. Therefore, issue No. 1 is decided in favour of the applicant."

2. Notice of the application was issued. Shri Pawan Malik, Advocate has put in appearance on behalf of the non-applicant-respondents.

3. Shri S. C. Chhabra, learned counsel for the applicant-appellant has argued that the position of the applicant after the decision of the learned lower appellate Court on 17-4-2004 has not undergone any change as the applicant has not acquired either any liquid cash or any other property after the passing of the aforementioned order. The sale of the property by the appellant in favour of Ravinder Pal Singh has also been taken into account and it has been concluded that no sale consideration passed on to the applicant-appellant which is alleged to be paid by Ravinder Pal Singh. Learned counsel has maintained that the report of the Collector dated 29-11-2002 has also confirmed that the appellant had no land.

4. Shri Pawan Malik, learned counsel for the non-applicant has, however, argued that under O. XLIII(1)(a) and Order XXXIII, Rule 5(e) of the Code, the appellant cannot be granted any relief and his application for declaring him as an indigent person is required to be rejected because the subject-matter of the appeal has been transferred and the interest of third party has come