Order 33, Rule 15, Civil Procedure Code, does not bar the institution of a suit in the ordinary manner if the costs of the pauper application are not paid before its institution, provided that the costs are paid during the pendency of the suit.

( 1 ) THIS is plaintiffs appeal from the judgment and decree of the Court of 1st additional District Judge, Jabalpur, dismissing his suit No. 20-A of 1951.

( 2 ) THE plaintiff had filed an application early in 1951 for permission to sue in forma pauperis. That application was dismissed on 19-6-1951 and the plaintiff was directed to bear his own costs and to pay the costs of the present defendants who were the non-applicants in those proceedings. The present suit was thereafter filed in the ordinary manner on 27-12-1951 without payment of the costs of the previous proceedings. The amount payable to defendant No. 1 was offered in Court by the plaintiff on 30-4-1952 but was refused. The costs were then deposited in Court on 14-8-1952. So far as defendant No. 2 is concerned, his costs amounted to Re. 1/-, but he made 110 objection to the institution of the suit on any allegation of non-payment. The lower Court dismissed the suit holding that as the plaintiff had not paid to defendant No. 1 his costs before instituting the suit, which contravenes Order 33, rule 15, Civil Procedure Code, the suit was liable to be dismissed.

( 3 ) THE dispute relates to a house situate in Miloniganj, Jabalpur. It first belonged to one Chukhar who sold it to Baldeo Prasad by a registered sale deed, dated 241-1927. Baldeo Prasad in his turn sold it to Chokheylal, defendant No. 2, by a registered instrument, dated 28-2-1951. The house was, however, sold in Court auction in execution of the decree in civil suit No. 642 of 1938, obtained by Seth rupchand against one Gopilal, and was purchased by the defendant No. 1, dulichand, on 2-2-1940. A sale certificate was issued in his favour on 9-3-1940. It is alleged by him that he took possession of the house in pursuance of the Court sale on 17-3-1940. The date of his taking possession, according to the plaintiff, however, was 28-2-1942. The date when defendant No. 1 actually took possession is material to determine the question of limitation, if it is held that the suit should be deemed to be instituted on the date when the costs of defendant No. 1 were offered and refused.

( 4 ) THE provision in Section 413 of the old Civil Procedure Code (Act XIV of 1882), which is analogous to Order 33, Rule 15 of the present Code, was the subject of interpretation in Mrinalini Debi v. Tinkauri Debi, 16 Cal W N 641 (A ). In that case, it was held that although Section 413 makes it a condition precedent to the institution of a suit in the ordinary way by a person whose application to sue in forma pauperis has been rejected, that he should first pay the costs incurred by the Government in opposing the application, the suit ought not be dismissed for non-payment on such costs when no demand for its payment was made at any time either on behalf of Government or by Court. A similar view would also govern the case of a private party who was allowed the costs of the application to sue in forma pauperis. This interpretation, namely, that Order 33, Rule 15, Civil procedure Code, contemplates that something has to be done by somebody other than the plaintiff and that it is not a question merely of the plaintiff taking some step in the matter of payment of the costs was also taken by the Bombay High court in Abdul Rahman v. Aminabi, AIR 1943 Bom 409 (B ). In the Bombay case, therefore, it was held that the payment of the costs of a pauper application directed to be paid is not a condition precedent to the institution of an ordinary suit and can be waived, and all that the rule directs is that the costs must be paid, if the matter is brought to the notice of the Court and the payment is not waived. It was also held that if the costs are not paid initially, then the Court should reject the plaint on presentation, but it is not bound to do so and may subsequently stay the suit pending the payment.

( 5 ) IN Ramkrishna v. Vandaya Thevar, AIR 1936 Mad 24 (C), it was held that if costs are paid after the suit is instituted the suit should be

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