JUDGMENT

1. The point which has been referred to us for decision by a Divisional Bench is in the words of that Bench as follows:

Is an order on an application for permission to sue in forma pauperis revisable by this Court and should a distinction be made between orders allowing applications under Order 33, Rule 2, Civil P.C., and those rejecting such applications ?

2. Prima facie, the terms of the reference are wide, but an examination of the referring order shows that the scope is really restricted. The reason why the reference was made is that there appeared to be a conflict of decisions on the point whether an order on an application under Order 33, Rule 2 was revisable in view of three decisions of Divisional Benches, although it was recognized that the matter was considered from different points of view. No reference has been made to any decision of any other Court, barring two decisions of their Lordships of the Privy Council which are quoted in one of those three decisions, and it is clear that the reference has been made not because there was any conflict real or apparent with decisions of any other High Court but because those three decisions of this Court might be regarded as conflicting. The three decisions are Badri Nath v. Ram Chandra (1989) 26 AIR Oudh 129, which was quoted by counsel for the opposite party before the Divisional Bench and, on the other hand Asa Ram v. Genda (1935) 22 AIR Oudh 20 and Durga Prasad v. Gur Dularey (1938) 26 AIR Oudh 146 which were quoted by counsel for the applicant. What we have to consider therefore is whether there is any conflict between Badri Nath v. Ram Chandra (1989) 26 AIR Oudh 129 on the one hand, and Asa Ram v. Genda (1935) 22 AIR Oudh 20 or Durga Prasad v. Gur Dularey (1938) 26 AIR Oudh 146, on the other, and only if there is such conflict are we called upon to say which of the decisions has to be preferred to the other. We therefore bear this in mind and do not refer to cases of other High Courts and consequently do not give any express decision here as to the correctness or otherwise of any of the three decisions of this Court independent of their bearing one upon the other. Badri Nath v. Ram Chandra (1989) 26 AIR Oudh 129 was a case in which an Official Receiver in insolvency had applied for permission to bring a suit in forma pauperis and as his application had been rejected he applied in revision to this Court. It was contended that in the circumstances of the case no revision lay, and the Divisional Bench decided that the contention was well founded. The decision of the Divisional Bench was based on two decisions of their Lordships of the Privy Council, Raja Amir Hasan Khan v. Sheo Bakhsh Singh (1885) 11 Cal 6 and Balakrishna Udayar v. Vasudeva Aiyar (1917) 4 AIR PC 71, and on them it was held that as the Courts below had jurisdiction to grant or refuse the application for permission to sue in forma pauperis, no revision lay against that order. Neither of the decisions of their Lordships of the Privy Council had to deal with an order on an application for permission to sue in forma pauperis.

3. The first case was one where under Section 622 of Act 10 of 1877 as amended by a later Act a decree of the District Judge had been reversed and cancelled. It was not suggested there that the Judicial Commissioner had no power to call for the record and to pass an order if the lower Court had exercised a jurisdiction not vested in it by law, or had failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity, but their Lordships of the Privy Council held that the lower Courts had jurisdiction to decide the case and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity.

4. The second case was one in which it was held that when the remaining members of a temple committee have for three months failed to fill up a vacancy therein by holding an electi