JUDGMENT

1. This second appeal against a decree of the learned District Judge of Gonda arises out of a suit brought by the plaintiff-respondent against the defendant-appellant on foot of a mortgage dated 8th December 1917, executed by the appellant's father in favour of the respondent for a sum of Rs. 1500. The mortgage was made for a period of five years; on 24th September 1934, the plaintiff-respondent applied for leave to sue in forma pauperis. The application as required by law contained all the particulars necessary for a plaint and the amount claimed was Rs. 10,497-1-5. The learned Civil Judge in whose Court the application was made, held an inquiry into the alleged pauperism of the plaintiff and on 2nd March 1935 arguments were heard on the application for leave. In the course of arguments, a request was made on behalf of the plaintiff that if the Court should not be inclined to grant the application for leave to sue in forma pauperis time be granted to the plaintiff to pay the necessary court-fee. The learned Judge after hearing the arguments passed an order the concluding portion of which runs as follows:

The opposite party opposes the request of the applicant to give him time for payment of court-fee but I think it would be inequitable to dismiss his application in forma pauperis and at the same time preclude him from maintaining his suit even on payment of the court-fee. Accordingly, under Section 149, Civil P.C., I permit the applicant to pay the necessary court-fee within a fortnight, i.e. by 18th March 1935 on his claim. On his failure to do so within the time fixed, the case shall be consigned to records and the defendant shall get his costs from the applicant.

2. The plaintiff reduced his claim from Rs. 10,497-1-5 to Rs. 5000 and the requisite court-fee on this amount being paid within the time fixed by the Court the suit proceeded. The defendant put up the plea that as limitation for the suit on the mortgage in question expired on 8th December 1934, and as the court-fee on the plaint was paid on 18th March 1935, the suit was time-barred. This plea found favour with the learned Civil Judge who tried the case and the suit was thereupon dismissed as time-barred. The plaintiff appealed and the learned District Judge holding that the plaint must be deemed to have been filed on 24th September 1934, along with the application for leave to sue as a pauper, found that the claim was not time-barred. He gave the plaintiff a decree for Rs. 5000 with interest at 6i per cent. per annum with yearly rests from the date of suit till 15th January 1936, and at 51/4 per cent. per annum from 16th January 1936 to the date fixed for payment of the mortgage money, under Order 34, Rule 4, Civil P.C. The defendant has brought this appeal against the decree of the learned District Judge and the following questions arise for determination in the appeal: (1) Was the suit of the plaintiff respondent barred by time? (2) Was the mortgage made for legal necessity? (3) Was the Court below wrong in not allowing the defendant-appellant to pay up the decretal amount by instalments ?

3. On the question whether the date of the institution of the suit in the present case be taken to be 24th September 1934, or 18th March 1935, the learned Counsel for the the appellant has referred us to the following cases: Biswa Nath Das v. Khejerali Molla AIR 1939 Cal 394AIR 1939 Cal 394, Pratap Chand v. Atmaram AIR 1933 Nag 237, Alopi Prasad v. Mt. Gappi AIR 1937 Lah 151 and Chunna Mal v. Bhagwant Kishore AIR 1936 All 584. In Biswa Nath Das v. Khejerali Molla AIR 1939 Cal 394 a Judge of the Calcutta High Court sitting singly held that where an application to sue in forma pauperis is rejected under Order 33, Rule 7(3) and the applicant seeks to deposit the full court-fee in respect of the relief sought, the suit must be considered for the purposes of limitation to have been instituted only after the payment of the requisite-court-fee and not on the date of the prese