JUDGMENT

The original petition is filed to stay all further proceedings in EP No.8/2021 in O.S.No.8/2018 of the Court of the Subordinate Judge, Devikulam till the disposal of IA No.1/2021 in unnumbered AS (indigent) No. of 2021 of the Court of the District Judge, Thodupuzha.

2. The petitioner’s case, in brief, in the memorandum of the original petition is that, he was the defendant in O.S. No.8/2018 of the Court of the Subordinate Judge, Devikulam, which was filed by the first respondent. The suit was decreed as per Ext.P1 judgment. Challenging Ext.P1, the petitioner has already filed Ext.P3 appeal before the District Court, Thodupuzha. Along with the appeal, he has filed Ext.P4 application seeking leave to institute the appeal as an indigent person. The Appellate Court has called for a report from the second respondent (State of Kerala) to ascertain whether the petitioner has means to pay the court fee to prefer Ext.P3. During the pendency of Exts.P3 and P4, the first respondent is hastily proceeding with the execution of the decree. The petitioner proposes to file an application to stay the decree, but as the appeal has not been numbered, the application may not be entertained. In the meantime, if the first respondent proceeds with the execution, the appeal will be rendered infructuous. Hence the original petition, to direct the Execution Court to keep in abeyance all further proceedings pursuant to impugned decree.

3. Heard;Sri. Unnikrishnan Alapatt, the learned counsel appearing for the petitioner, Sri. Harikrishnan, the learned counsel appearing for the first respondent and the learned Government Pleader appearing for the second respondent.

4. Admittedly, the petitioner has already preferred Ext.P3 appeal before the competent Appellate Court. He has also sought leave under Order XLIV of the Code of Civil Procedure, to sue as an indigent person as evident by Ext.P4. The Appellate Court has called for a report from the Government Pleader and the same is awaited, as can be gathered from the report of the learned District Judge. It is also on record that the first respondent has filed EP No.8/2021 before the Execution Court to execute Ext.P1 judgment and decree passed thereon.

5. This Court in Joseph v. Jess Raphael[1987 (2) KLT

217] interpreting order XXXIII Rule 1 of the Code of Civil Procedure, has held that, though a report from the Government Pleader is highly desirable to ascertain whether the facts mentioned in the affidavit are true or not as regards the means of alleged indigent person, that does not mean that the court or the parties have to wait till the Government Pleader’s report reaches the court. There is no prohibition for the court to pass any interim order, while waiting for the report of the Government Pleader.

6. Order XLIV Rule 1 of the Code of Civil Procedure reads as follows:-

1. Who may appeal [as an indigent person] (1) Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal and may be allowed to appeal as an [indigent person] subject, in all matters, including the presentation of such application, to the provisions relating to suits by [indigent persons], in so far as those provisions are applicable.

7. A reading of the above extracted provision establishes that the procedure prescribed to file an appeal as an indigent person is the same as the procedure contemplated under Order XXXIII of the Code. Therefore, the decision in Joseph’s case (supra) is squarely applicable in the case of appeals also. Almost the same view has been taken by a Full Bench of this Court in Usha v. Visakh Unnikrishnan [2018 (4) KLT 935].

8. In the light of the clear exposition of law by this Court in the afore-cited decisions, I am of the view that there is no prohibition in the Appellate Court entertaining an application to stay the execution of a decree while awaiting for the report of the Government Pleader. Moreov