Notice is not a requirement for respondents in pauper appeals under Order 44. Hence, the court dismissed the petition.

1 The short question in this petition is whether the petitioner herein, who is the 22nd respondent in the appeal, was entitled to notice before the appellant was allowed to appeal in forma pauperis.

2 In C.M.P. No. 1830 of 1960 I granted leave to the appellant, who was allowed to sue as a pauper in the lower court, to appeal as a pauper after giving notice to the State. No notice was issued to the respondents in the appeal. The 22nd respondent has filed this petition to set aside the order in C.M.P. No. 1830 of 1960 on the ground that the order was passed ex parte and that the 22nd respondent was entitled to notice before the appellant was allowed to appeal as a pauper.

3 There is a recent decision of this court in Krishna Bhatta v. Anantha Bhatta (1961 KLT 38), wherein Madhavan Nair, J. has considered a similar question in extenso. In that case notice was issued to the respondent and he sought to oppose the application for leave to appeal in forma pauperis. Madhavan Nair J., after reviewing several decisions of several High Courts, has ruled that the very issuance of a notice after hearing the applicant's counsel tantamounts to a record that the Court saw reason to think that the decree was contrary to law or to some usage having the force of law or was otherwise erroneous or unjust and therefore, it is not open to the Court to reconsider the matter at a subsequent stage and say that the decree is correct and just and no notice ought to have been issued at the first stage. For all the reasons given by my learned brother I agree with the opinion expressed by him,

4 The learned counsel for the petitioner has drawn my attention to two decisions subsequent to the amendment of the Code of Civil Procedure by Act LXVI of 1956, which do not appear to have been brought to the notice of Madhavan Nair, J. Those decisions are Narsingdas v. Mulraj (AIR 1958 Raj 133) and Mohammed-un-nisa v. Faiyaz Ali (AIR 1958 Punj. 437). The argument of the learned advocate is that these decisions were passed after the amendment of the Civil Procedure Code and as such the view expressed in these decisions should prevail over the view expressed in the earlier cases, which have been followed by Madhavan Nair, J. In a recent Full Bench decision of the Calcutta High Court in Shib Krishna Das v. Panchnan Ganguly (AIR 1961 Cal. 346), these decisions have also been considered. The Calcutta Full Bench decision has held that in showing cause neither the respondent nor the Collector is entitled to show that the decree is not contrary to law or to some usage having the force of law or is otherwise erroneous or unjust under the old proviso or under the present sub-r. 2 to O. 44 R. 1. I respectfully agree with this view.

5 I would only add a few words on one aspect of the question. Order 33 makes elaborate provisions regarding the procedure in relation to suits by paupers. Order 44, relating to pauper appeals, has only two rules. Rule 1(1) provides that a person entitled to prefer an appeal, who is unable to pay the fee, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper, subject in all matters including the presentation of such application, to the provisions relating to suits by paupers, in so far as those provisions are applicable. The learned Advocate of the petitioner relies on this provision and contends that Order 44 is subject to the provisions relating to suits by paupers contained in Order 33. I would now examine how far this provision gives the respondent in a pauper appeal the right to be heard before the appellant is allowed to appeal as a pauper. Rules 5 to 7 of Order 33 may be looked into in this connection. Under Rule 5 the Court shall reject an application for permission to sue as a pauper, if on examination of the applicant the court finds that one of the conditions mentioned in that rule exists. If the court sees no reason to reject the application on any of those grounds mentioned in R. 5. R. 6 pr