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Report No. 54

Chapter 44

Appeals by Indigent Persons

Introductory

44.1. Appeals by indigent persons (described in the Code as "paupers") form the subject-matter of Order 44. There is only one important point to be considered under this rule, which we discuss below. Verbal changes to substitute the expression "indigent person" will, of course, be needed.1

1. See discussion as to Order 33.

Order 44, rule 1(2)

44.2. With reference to Order 44, rule 1(2), the following discussion is found in the earlier Report.1

"Order 44, rule 1(2) provides that an application by a pauper for leave to appeal as a pauper must be rejected unless he can show that the decree is contrary to law or usage having the force of law or is otherwise erroneous or unjust etc. A suggestion has been put forth that this provision is unconstitutional under Articles 13 and 14 (since no such restriction is applicable to appeals by non-paupers.) It is, however, felt that the existing provision is prima facie reasonable, as it is intended to prevent frivolous appeals by a pauper. It can be justified on the ground that a person who has failed in one court should show a prima facie case before he can be permitted to appear."

1. 27th Report, note an Order 44, rule 1(2).

Recommendation

44.3. We are, however, of a different view. We think that the present restriction cannot be regarded as justifiable or reasonable, and is likely to be regarded as discriminatory and is even otherwise unjust and unfair. It should be removed, as no rational basis can be advanced in its support.

We, therefore, recommend that Order 44, rule 1, sub-rule (2), should be deleted.

Order 44, rule 2

44.4. Order 44, rule 2, contemplates an inquiry into pauperism of the appellant (who wishes to appeal as a pauper) by or under the orders of the appellate court. In the interests of expedition, we recommend the following small amendments

(i) Where the person applying for leave to appeal as a pauper was allowed to sue as a pauper, such inquiry should be ordered if he makes an affidavit that he has not ceased to be a pauper after the decree of the first court, unless the affidavit is challenged later.

(ii) Inquiry that a person has now become a pauper should ordinarily be made by the appellate court (and not by the lower court);

(iii) Inquiry by an officer of the appellate court to whom the power is delegated by the court, should also be permitted.

Recommendations

44.5. Accordingly, we recommend that rule 2 should be revised as follows:-

"2. The inquiry into the question whether the applicant is an indigent person may be made either by the appellate court or, under the orders of the appellate court, by an officer of that court or under such orders by the court from whose decision the appeal is preferred.

Provided that, if the applicant was allowed to sue or appeal as an indigent person in the court from whose decree the appeal is preferred, no further inquiry in respect of the question whether he is an indigent person shall be necessary, if the applicant has made an affidavit stating that he has not ceased to be an indigent person since the date of the decree appealed from; but if the Government pleader or the respondent disputes the truth of such statement, in the affidavit, an inquiry into the question whether he is an indigent person shall be held:

Provided, further, that, where it is alleged that a person has become an indigent person since the date of the decree appealed from, the inquiry shall be made only by the appellate court or by an officer of that court under its orders, unless the appellate court considers it necessary in the circumstances of the case that the inquiry should be held by the court from whose decision the appeal is preferred."



The Code of Civil Procedure, 1908 Back




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