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 to the provisions relating to suits by indigent persons. [Order XLIV, Rule 1(1)].
Where an application is rejected under Rule 1, the Court may, while rejecting the application, allow the applicant to pay the requisite court fee within such time as may be fixed by the Court or extended by it from time to time; and upon such payment, the memorandum of appeal in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance. (Order XLIV, Rule 2).
Where an applicant, referred to in Rule 1, 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 or not 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 the statement made in such affidavit, an enquiry into the question aforesaid shall be held by the appellate court, or under the orders of the appellate Court, by an officer of that court.
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ADVERTISEMENTS:
Where the applicant is alleged to have become an indigent person since the date of the decree appealed from, the enquiry into the question whether or not he is an indigent person shall be made by the appellate Court or, under the orders of the appellate Court, by an officer of that Court 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. (Order XLIV, Rule 3).
By the amendment made in the year 1976 sub-rule (2) of Rule 1 of Order XLIV of the Code of Civil Procedure was deleted. The result is that when an application made under Rule 1 of Order XLIV, C.P.C. comes up for hearing, the only question which has now to be considered is whether the applicant is an indigent person or not.
Any question relating to the merits of the case does not arise for consideration at that stage. If the application is granted, then the memorandum of appeal would have to be registered as an appeal and disposed of in accordance with law.
ADVERTISEMENTS:
When the appeal is posted for admission the appellant has to satisfy the Court that the appeal merits admission. At that stage the appellant may draw the attention of the court not merely to the judgment and decree appealed from but also to all the relevant records in the case to substantiate his claim that the appeal deserves to be admitted. Rule 2 of Order XLIV as it now stands, requires that where an application is rejected under Rule 1 thereof the Court may while rejecting the application allow the applicant to pay the requisite court fee within such time as may be fixed by the court or extended by it from time to time and, upon such payment, the memorandum of appeal in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance. If the requisite court fee is paid the appeal has to be registered and posted for admission.
A rejection of the application made under Rule 1 of Order XLIV now can only mean that the court is not satisfied about the claim of the applicant that he is an indigent person and nothing more. It does not, however, amount to a finding that the appeal is not a fit one for admission on merits.
Otherwise Rule 2 of Order XLIV which permits payment of court fee after the application under Rule 1 is rejected, would become meaningless. Since what was rejected was the application under Rule 1 of Order XLIV of the Code of Civil Procedure, the High Court should have made an order as required by Rule 2 thereof granting time to the appellant to pay the requisite court fee and permitting him to prosecute the appeal. The High Court failed to do so even when an application was made for that purpose. The order of the High Court was clearly unsustainable.
Appeals from Interlocutory Orders:
ADVERTISEMENTS:
As a general rule of law no appeal lies against an interlocutory order which is not sufficient to dispose of the suit as a whole, except where an appeal is expressly provided. The best test to ascertain whether an erroneous interlocutory order has affected the ultimate decision on the merits is to see whether the court would have come to the same decision had the erroneous order not been passed.
There are interlocutory orders which can be challenged in an appeal against the final decree. As said above, they are of such a nature as would or might have induced the court to alter its decision; for instance, an order refusing to admit a document which is in law admissible or to examine a witness or to issue a commission or some such act which is calculated ultimately to influence the decision of the court on the merits.
Then there are interlocutory orders against which no appeal has been provided for and even they can be challenged in an appeal from the decree in the manner set forth in S. 105 of the Code of Civil Procedure.