Fernando V. Fernando Et Al.,

1938 Present: Poyser S. P. J. and Wijeyewardene J.
 
FERNANDO v. FERNANDO et al.

APPLICATION TO SUE IN Forma pauperis.
 
D. C. Negombo, 3.

Application to sue in forma pauperis-Certificate by Proctor-Discretion of Judge-Meaning of pauper-Civil Procedure Code ss. 441, 447.

A person seeking to sue for redemption of a mortgage in forma pauperis cannot claim to sue as a pauper so long as he could raise money on his equity of redemption.

It is within the discretion of the District Judge whether he should grant or refuse permission to sue in forma pauperis, even though a Proctor has certified that the applicant has a good cause of action.

APPEAL from an order of the District Judge of Negombo.

A. Sambandan (with him P. Navaratnarajah), for the petitioner.

Cur. adv. vult.

November 14, 1938. WIJEYEWARDENE J. -

This is an appeal from an order of the District Judge made under section 447 of the Civil Procedure Code refusing to allow the appellants to sue as paupers. It was contended in support of the appeal that the Judge had misdirected himself in going behind the certificate of the proctor who had certified that the appellants had a good cause of action and holding that the appellants' cause of action was bad, as the only matter which the Judge had to consider under section 447 was the question of pauperism. Though the Counsel who appeared for the appellants argued the appeal as if it involved a pure question of law, I think it desirable to set out briefly the facts disclosed in the present proceedings as well as the proceedings in the connected action No. 9,451 of the District Court of Negombo.

The appellants-Mary Angelina Pieris and her husband-instituted action No. 9,451 in the District Court of Negombo on May 7, 1936. In the plaint they stated that-

(a) they mortgaged the land called Murungahawatta with the defendant by a bond of September 6, 1930, for the sum of Rs. 2,000 but received only a sum of Rs. 1,000;

(b) the mortgage was executed to place the mortgaged land beyond the reach of their creditors who had obtained decrees against them.

(c) the defendant put the bond in suit in action No. 6,708 of the District Court of Negombo, in 1932, and sold the mortgaged premises and purchased the same on February 7, 1933;

(d) they had paid Rs. 750 to the defendant prior to the institution of the mortgage action.

The appellants asked for judgment against the defendant directing him to reconvey Murungahawatta on their paying him Rs. 250 and the costs of the conveyance or in the alternative for a sum of Rs. 1,500.

The defendant filed answer asking for the dismissal of the action.

On the application of the defendant the District Judge ordered the appellants under section 417 of the Civil Procedure Code to give security in cash Rs. 100 or in property worth Rs. 200 within a certain stated time. On the appellants failing to give security as ordered, the District Judge entered decree on November 16, 1936, dismissing the action with costs. The appellants thereupon filed a motion in Court dated December 22, 1936, asking the Court to set aside the order of dismissal. This motion reads: -

No. 9,451, D. C. Negombo.

We Kurukulasuriya Moderage Emalianu Fernando and Kurukulasuriya Mary Angelina Pieris of Negombo, the plaintiffs in the above case move that the Court may be pleased to permit us to deposit the amount ordered as cash security by the Court which we are prepared to do so and we beg of the Court to vacate the order made and to refix the same for trial in due course.

(1) Emalianu Fernando,
(2) (illegible)
Plaintiffs.

Witness to the signature and identity of the plaintiffs above named.

D. E. Justin Pieris,
Proctor S. C. & N. P.

Negombo, December 22, 1936.

The District Judge refused to set aside his order dismissing the action as the application was not made within thirty days as required by section 418 of the Civil Procedure Code. The app

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