( 1 ) THIS is an application by a plaintiff for revision of an order of the Civil Judge, Bulandshahr, dismissing his application to sue as a pauper under Order XXXIII, Rule 1, C. P. C. The application came up for hearing before Upadhya, J. who being of the view that certain observations made by a Bench of this Court in Mohd. Baksh v. Khair-un-nisa, 1944 All LJ 366 required reconsideration referred the case to a Bench.

( 2 ) THE facts, about which there is no dispute, in this case are that on 19-12-1956 the applicant sold his house, which was his only property, to his son-in-law and on 22-4-1957 filed an application to sue the Union of India as a pauper. His application was opposed by the District government Counsel, who also represented the Union of India. The learned Civil Judge made an enquiry into the alleged pauperism on July 20, 1957, discovered that in the schedule of property the applicant had not mentioned a sum of Rs. 50/- deposited by him and his wife jointly in a certain bank and gave him time to amend the schedule. The schedule was amended within the time allowed but the District Government Counsel made an application for permission to produce evidence to challenge the sale of 19-12-1956 as fictitious. The learned Civil Judge made an enquiry into the fictitious nature of the sale and holding that it was fictitious decided that the applicant was possessed of sufficient means to pay the court fee. It is not in dispute that if be was deemed to be still owning the house he would have sufficient means to pay the court fee payable on the plaint.

( 3 ) IT was vehemently contended before us that the enquiry into the fictitious nature of the sale was barred by the provision contained in Order XXXIII, Rule 5 (c ). That provision is to the effect that the court shall reject an application for permission to sue as a pauper where the applicant has:

"within two months next before the presentation of the application disposed of any property fraudulently or in order to be able to apply for permission to sue as a pauper. "

It was argued that since the alleged sale was made more than two months before the presentation of the application for permission to sue as a pauper the court could not embark upon an enquiry into the allegation that it was a fictitious sale. The argument is irrelevant; the application was rejected not on the ground that the applicant disposed of the house, fraudulently or in order to be able to sue as a pauper but on the ground that the alleged sale was in effect no sale at all and that the remained the owner of the house and thereby possessed of sufficient means to pay the court fee. The two grounds on which the petition could be rejected are distinct from each other and if one ground did not apply it cannot be said that the application could not be dismissed even if the other ground applied. The learned Civil Judge did not hold any enquiry about the sale being fraudulent or actuated by the bad motive mentioned in Rule 5 (c) and did not hold that it was such a fraudulent sale. His finding that there was in reality no sale at all is quite a different finding. The distinction between a fraudulent sale and a fictitious sale is well-known; a fraudulent sale exists though it can be avoided, whereas a fictitious sale does not exist at all. What was alleged by the District Government Counsel to this case was that the applicant did not sell his house at all to his son-in-law on 19-12-1956 and only made a pretence of doing so. The sale was not attacked as fraudulent or as having been made with an intention to be able to sue as a pauper subsequently. Therefore, it was wholly irrelevant to consider whether the alleged sale was made within two months next before the presentation of the application or not. There is no similar time limit prescribed for an enquiry whether the sale was made at all or not as in the present case. That enquiry is in fact an enquiry into the means of the applicant; the court is bou