R. DAYAL, J.

( 1 ) ONE Ganga Prasad instituted the suit in 1944 as a pauper. He prayed for permission to sue as pauper. The necessary permission was granted. Issues were framed on the 18th November, 1946. Ganga Prasad died on 39-11-10-10. Smt. Kalawati, his sister applied to be added as a party to the suit as Ganga Prasads legal representative. She just mentioned in the application that she was also a pauper hut she did not make any formal prayer in the application that she be either allowed to sue as pauper or to continue the suit as a pauper. On the 10th August, 1949 the court ordered that she he added as a party as legal representative of ganga Prasad. The court then proceeded into an inquiry whether she was a pauper and held on the 17th February, 1950 that she was not a pauper, and therefore she should pay the requisite court-fee.

( 2 ) KALAWATI then filed a revision in this Court contending that she should have been allowed, as legal representative, to continue the suit as provided under Order 33 Rule 8 of the Code of Civil procedure, that she could not be ordered to pay court-fee when there was no application by the defendant or the Government Pleader under Order 33 Rule 9 of the Code and that it was not necessary for her to prove for the purpose of continuing the suit that she was a pauper.

( 3 ) THIS revision came up for hearing before brothers Mukerji and Tandon. They differed and then passed an order on 31-7-1957 to the following effect :

"since we differ in regard to the question arising in this case: we direct that this case, along with our opinions be laid before the Honble the Acting Chief Justice for the purpose of obtaining the opinion of another Judge. "

The case has now been referred to me for the necessary opinion.

( 4 ) THE learned counsel for the opposite party raised a preliminary objection to the effect that the reference was incompetent as the entire case could not be referred in view of Rule 3 Chapter viii of the Rules of the Court, and as the learned Judges having delivered separate and different judgments had no further power to make the reference. I do not consider the preliminary objection to be sound. The individual judgments of the two Judges are really their individual opinions about the merit of the case. In neither of these judgments any learned Judge says that he allows the application of revision or dismisses it. Each of the learned Judges uses the expression to the effect that he would either dismiss this revision with costs and confirm the order of the court or that the revision be allowed, the order of the learned Judge below be set aside and the suit should proceed in normal course in accordance with the provisions of Order 33 Rule 8 of the Code. I do not take these judgments to be final judgments of the learned Judges as they themselves passed the final order as a court referring the case for the opinion of another Judge. In this connection I am referred to the case icported in Lal Singh v. Ghansham Singh, ILR 9 All 625 (FB) (A ). The learned Judges who had differed and made the reference had used similar expressions and had not used the expressions that they were dismissing or allowing the appeal. It, however, transpired when the matter came up before the Full Bench of five Judges that the reference was incompetent on account of more than one ground. The first reason was that the difference of the Judges was not on any question of law. A reference to the third Judge is permitted under the law on. a point of law. Further one of the differing Judges, who happened to be a member of the Full Bench expressed that each of the two differing Judges had delivered the judgment and meant to deliver it in the case. This meant that each of them wanted a final disposal of the appeal in accordance with their differing judgments. Under the law the decree of the court below would have been confirmed when the Judges hearing the appeal differed and did not utilise the provision of making a reference of the