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CHANAKYA NATIONAL LAW UNIVERSITY,


PATNA

Appeals By Indigent Persons

Subject- CIVIL PROCEDURE CODE

Faculty - Submitted by:


Mr. B.R.N Sharma Name - Shweta

Semester -5th

Roll No - 813
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ACKNOWLEDGEMENT

It is my greatest pleasure to be able to present the project topic APPEALS BY INDIGENT


PERSONS of Civil procedure Code. I found it very interesting to work on this project. I
would like to thank my teacher,

Mr. B.R.N Sharma, for providing me with such an interesting project topic and for his
constant support and guidance.

I would also like to thank my librarian for helping me in gathering data for the project. Last,
but not the least, I would heartily thank my family and friends for their unwavering support
without which this work would not have been possible.

I hope that the readers will appreciate this project work.

Shweta.....
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RESEARCH METHODOLOGY

The method used in the project is that of Doctrinal research. Maximum possible use of
written data, texts, and cases etc, that are available has been made. The method is that of
library based research.

SOURCES OF DATA

The source of data that has been used is mainly secondary source of data. Extensive use of books,
texts, articles and literary works has been made to gather all the required information about the project
topic.

CHAPTERISATION
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CHAPTERS PAGE NO

1. INTRODUCTION 5
2. APPEALS- A BRIEF OVERVIEW 7
Meaning of Appeal
Essentials of Appeal
Memorandum of Appeal
Right to Appeal
When appeal can be allowed
When appeal cannot be allowed

3. ORDER 33 And ORDER 44 11


4. APPEALS BY INDIGENT PERSONS 13
5. JUDICIAL APPROACH 17
6. CONCLUSION 18
BIBILOGRAPHY 19

INTRODUCTION
The Supreme Court in Mathai M. Paikeday Vs. C.K. Antony has discussed the concept of
'indigent person' as defined under Order 33 of the Code of Civil Procedure, 1908. While
discussing the relevant judgments on the subject, the court held as under: Order 33 of the
Code of Civil Procedure deals with suits by indigent persons whereas Order 44 thereof deals
with appeals by indigent persons.

The concept of indigent person has been discussed in Corpus Juris Secundum (20 C.J.S.
Costs ' 93) as following:
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"'What constitutes indigency:1 The right to sue in forma pauperis is restricted to indigent
persons. A person may proceed as poor person only after a court is satisfied that he or she is
unable to prosecute the suit and pay the costs and expenses. A person is indigent if the
payment of fees would deprive one of basic living expenses, or if the person is in a state of
impoverishment that substantially and effectively impairs or prevents the pursuit of a court
remedy. However, a person need not be destitute. Factors considered when determining if a
litigant is indigent are similar to those considered in criminal cases, and include the party's
employment status and income, including income from government sources such as Social
Security and unemployment benefits, the ownership of unencumbered assets, including real
or personal property and money on deposit, the party's total indebtedness, and any financial
assistance received from family or close friends. Not only personal liquid assets, but also
alternative sources of money should be considered."

The eligibility of person to sue in forma pauperis has been considered in American
Jurisprudence (20 Am. Jur. 2d Costs ' 100) as thus:

Eligibility to sue in forma pauperis; generally: The burden of establishing indigency is on the
defendant claiming indigent status, who must demonstrate not that he or she is entirely
destitute and without funds, but that payments for counsel would place an undue hardship on
his or her ability to provide the basic necessities of life for himself or herself and his or her
family. Factors particularly relevant to the determination of whether a party to a civil
proceeding is indigent are:

(1) the party's employment status and income, including income from government sources
such as social security and unemployment benefits;

(2) the ownership of any unencumbered assets, including real or personal property and
monies on deposit; and finally

(3) the party's total indebtedness and any financial assistance received from family or close
friends. Where two people are living together and functioning as a single economic unit,
whether married, related, or otherwise, consideration of their combined financial assets may
be warranted for the purposes of determining a party's indigency status in a civil
proceeding."

1 http://www.legalblog.in/2011/07/indigent-person-under-code-of-civil.html
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An appeal thereafter is a removal of a cause from an inferior court to a superior court for the
purpose of testing the soundness of the decision of the inferior court. It is a remedy provided
by law for getting the decree of the lower court set aside. In other words, it is a complaint
made to the higher court that the decree passed by the lower court is unsound and wrong." It
is "a right of entering a superior court and invoking its aid and interposition to redress an
error of the court below"

The object and purpose of Order 33 and Order 44 of the Code of Civil Procedure are to
enable a person, who is ridden by poverty, or not possessed of sufficient means to pay court
fee, to seek justice. Order 33 and Order 44 of the Code of Civil Procedure exempts such
indigent person from paying requisite court fee at the first instance and allows him to institute
suit or prosecute appeal in forma pauperis.

APPEALS:A BRIEF OVERVIEW


MEANING OF APPEAL:
The expression "appeal" has not been defined in the Code. According to dictionary meaning,
"appeal" is "the judicial examination of the decision by a higher court of the decision of an
inferior court".2 Stated simply, appeal is a proceeding by which the defeated party approaches
a higher authority or court to have the decision of a lower authority or court reversed. In
Nagendra Nath Dry v. Suresh Chandra Dey 3, speaking for the Judicial Committee of Privy
Council, Sir Dinsha Mulia stated: "There is no definition of appeal in the Code of Civil
2 Chambers 21st Century(1997) at p.59
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Procedure, but their Lordships have no doubt that any application by a party to an appellate
court, asking to set aside or reverse a decision of a subordinate court, is an appeal within the
ordinary acceptation of the term." An appeal is thus a removal of a cause from an inferior
court to a superior court for the purpose of testing the soundness of the decision of the
inferior court. It is a remedy provided by law for getting the decree of the lower court set
aside. In other words, it is a complaint made to the higher court that the decree passed by the
lower court is unsound and wrong. It is "a right of entering a superior court and invoking its
aid and interposition to redress an error of the court below"4

ESSENTIALS

Every appeal has three basic elements:

(i) A decision (usually a judgment of a court or the ruling of an administrative


authority);
(ii) (II) A person aggrieved (who is often, though not necessarily, a party to the original
proceeding); and
(iii) (iii) A reviewing body ready and willing to entertain an appeal

MEMORANDUM OF APPEAL:

Order XLI provides that every appeal shall be preferred in the form of memorandum signed
by the appellant or his pleader and presented to the Court or to such officer as it appoints in
this behalf. Appeal should be accompanied by a copy of the decree appealed from and (unless
the Appellate Court dispenses therewith) of the judgment on which it is founded. However,
where more cases than one disposed of by a common judgment, the Appellate Court may
dispense with the necessity of filing more than one copy of the judgement.

CONTENTS OF MEMORANDUM:

A memorandum of appeal is meant to be a succinct of the grounds upon which the appellant
proposes to support the appeal. It must set forth, concisely and under distinct heads the

3 (1931-32) 59 283: AIR 1932 PC 165

4 Attorney General vs. Sillen, (1864)10 HLC 74 at p.715


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grounds of objection to the decree appealed from without any argument or narrative, which
should be numbered consecutively. The same is true in case of second appeal as well.

The party, who is aggrieved by a decree, or an order of a Court, appeals to the appellate Court
by presenting a memorandum of appeal which sets forth the grounds of objection to the
decree or order appealed against. The grounds are set forth without any argument and are
numbered consecutively. An advocate has to be very careful to see that every ground of
objection is set forth in the memorandum, because if any ground is omitted, the appellant
cannot urge or be heard in support of it except by leave of the -Court; and such leave is not
granted as matter of course. It is because the respondent must have fair notice of the grounds
of objection, which he has to meet atthe hearing of the appeal. But the appellate Court is not
precluded from deciding the appeal on other grounds. The decision of the appellate Court
rests, (a) on the grounds set forth in the memorandum of appeal, or (b) on the ground taken
by leave of the Court, or (c) on any other grounds, provided that the party who may be
affected thereby has had a sufficient opportunity of contesting the case on that ground.

Before drafting a memorandum of appeal, one must carefully study the judgement, the issues
and the findings arrived thereon, because a clue to the grounds may be got from them. The
memorandum of appeal consists of the following particulars: (a) name of the appellate Court,
(b) appeal in suit number from (name of the Court and place from), (c) appeal number (to be
kept blank for use of by Court office), (d) name and description of the parties, (e) in the body
of the memorandum first describe the suit number of the Court and the date of the decree, or
final order against which the appeal is preferred and then (f) state the grounds of objection on
which it is preferred, (g) prayer (relief), (h) date and place, (i) signature of appellant or his
advocate.

The memorandum of appeal is accompanied by the certified copy of the decree and the
judgment, or order appealed from as the case may be, and then it is presented to the
concerned officer in the office of the Court of appeal. The memorandum of appeal should
also be accompanied by a power of attorney, i.e. Vakalatnama or Vaki/ patra from the
appellant. However, no fresh vakalatnama is necessary, if the lawyer of the trial court is
continued in the Court of appeal.

RIGHT TO APPEAL:
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A person cannot file an appeal from a decision as a matter of right. Right of appeal is not an
inherent right. Unless it is clearly provided, an appear cannot be filed. When it is conferred by
a statute; it will become a vested right. There is a distinction between right to file a suit and a
right to file an appeal. Right to file a suit is an inhetent right unless it is barred by a specific
statute. But right to file an appeal is not a vested right unless it is provided by law5.

WHO MAY APPEAL:

An appeal may be preferred by any one of the following persons/parties having legal
grievance against a decision/judgment of a lower court - i) Any party to the suit adversely
affected by the decree, or, if such party is deal, by his legal representative. ii) Any transferee
of the interest of such party, who so far as such interest is concerned is bound by the decree,
provided his name is entered on the record of the suit. iii) An auction purchaser may appeal
from an order in execution setting aside the sale on the ground of fraud. No person, unless he
is party to the suit is entitled to appeal. However, .a person who is not a party but who is
aggrieved by the judgment and if he seeks and gets leave of the Court to prefer an appeal
against the judgment can also appeal.

WHEN CAN AN APPEAL BE ALLOWED

Section 95 provides than an appeal shall lie from every decree passed by any Court
exercising original jurisdiction to the Appellate Court. An appeal shall lie from an original
decree passed ex parte.

An appeal shall lie from the following orders, such as an order under Section 35-A; an order
under Section 91 or 92 refusing leave to institute a suit of the nature referred in Section 91 or
Section 92, as the case may be; an order under Section 95, an order under any of the
provisions of this Code imposing a fine or directing the arrest or detention in the civil prison
5 Gangabai vs. Vijay Kumar, AIR 1974 SC (1126).
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of any prison of any prison of any person except where such arrest or detention is in
execution of a decree; any order made rules from which an appeal is expressly allowed by
rules (Section 104).

WHEN CAN AN APPEAL NOT BE ALLOWED:

An appeal shall not be allowed from a decree passed by the Court with the consent of parties
(Section 96).

No appeal shall lie, except on a question ofn law, from a decree in any suit of the nature
cognizance by Courts of small causes, when the amount of value of subject matter of the
original suit doesnot exceed 3000/- (Sec 96)

When any party did not appeal against the preliminary decree, he lost his right to file an
appeal after it final decree( Sec 97)

A decree which is correct on the merits, and is within the jurisdiction of the court, but still
suffers with some technical problems, such as misjoinder or non-joinder of parties causes of
action, or any error, defect or irregularity, etc. The decision should not be upset merely for
technical and immaterial defects. In such occasion, no appeal shall be allowed. (Sec 99)

ORDER 33 and ORDER 44:

Order 33 Rule 1 of the Code of Civil Procedure provides for instituting of suits by indigent
person, stating:

"1. Suits may be instituted by indigent person-- Subject to the following provisions, any suit
may be instituted by an indigent person.
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Explanation I.--A person is an indigent person,--

(a) if he is not possessed of sufficient means (other than property exempt from attachment in
execution of a decree and the subject-matter of the suit) to enable him to pay the fee
prescribed by law for the plaint in such suit, or

(b) where no such fee is prescribed, if he is not entitled to property worth one thousand
rupees other than the property exempt from attachment in execution of a decree, and the
subject-matter of the suit.

Explanation II.--Any property which is acquired by a person after the presentation of his
application for permission to sue as an indigent person, and before the decision of the
application, shall be taken into account in considering the question whether or not the
applicant is an indigent person.

Explanation III.--Where the plaintiff sues in a representative capacity, the question whether
he is an indigent person shall be determined with reference to the means possessed by him in
such capacity."

Order 44 of Code of Civil Procedure provides for instituting an appeal as an indigent


person. The provision reads :-

"1. Who may appeal as an indigent person - 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 person, in so far as those provisions are applicable."

The object and purpose of Order 33 and Order 44 of the Code of Civil Procedure are to
enable a person, who is ridden by poverty, or not possessed of sufficient means to pay court
fee, to seek justice. Order 33 and Order 44 of the Code of Civil Procedure exempts such
indigent person from paying requisite court fee at the first instance and allows him to institute
suit or prosecute appeal in forma pauperis.
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APPEALS BT INDIGENT PERSONS:

RULE 1: WHO MAY APPEAL AS 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,
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including the presentation of such application, to the provisions relating to suits by


indigent persons, in so far as those provisions are applicable:

RULE 2: GRANT OF TIME FOR THE PAYMENT IF COURT


FEE

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.

RULE 3:INQUIRY AS TO WHETHER APPLICANT IS AN


INDIGNENT PERSON

(1) 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 inquiry 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.

(2) Where the applicant, referred to in rule 11, is alleged to have become an indigent person
since the date of the decree appealed from, the inquiry 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.

EXPLANTION OF ORDER 44:

GENERAL
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Order 33 deals with suits by indigent persons. Order 44 deals with appeals by indigent
persons. The provisions of Order 44 are subject in all matters to the provisions of Order 33
insofar as they are applicable.

WHO MAY APPEAL: RULE 1

Any person entitled to prefer an appeal, who is unable to pay court 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. Before the Amendment Act of
1976, certain restrictions were imposed on the right of an indigent person to prefer an appeal
under sub-rule (2) of Rule 1. It provided that the court shall reject the application to appeal in
forma pauperis, unless it is shown that the decree is contrary to law, or to some usage having
the force of law, or is otherwise erroneous or unjust. Those restrictions were considered to be
unjust, unfair, discriminatory and without any rational basis 6. The Law Commission,7
therefore, recommended that the said provisions be deleted. The said recommendation of the
Law Commission was accepted and, accordingly, sub-rule (2) of Rule I was deleted. The
present position is that an indigent person may also file an appeal on all the grounds available
to an ordinary person. An indigent person can also file cross-objections.8

PAYMENT OF COURT FEES: RULE 2

The rejection of an application for leave to appeal as an indigent person does not ipso facto
result in the rejection of the memorandum of appeal filed along with the application. 9It only
means that the court is not satisfied about the claim of the applicant that he is an indigent
10
person and nothing more. Rule 2 empowers the court to grant time for payment of court
fees when the application for leave to appeal as an indigent person is rejected

INQUIRY: RULE 3
6 Law Commission's Fifty-fourth Report at P. 313

7 Ibid

8 Or, 41 R. 22(5),

9 State of T-C v. John Mathew, AIR 1955 TC 209 (FB); Shahzadi Begam v. Alakh Nath, AIR 1935 All 620

10 Ram Sarup v. Union of India, (1983)4 SCC 423: AIR 1983 SC 1196
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RULE 3 Rule 3 provides that where the appellant was allowed to sue as an indigent person in
the trial court, no fresh inquiry is necessary if the applicant files an affidavit to the effect that
he has not ceased to be an indigent person since the date of the decree appealed from.
However, if the government pleader or the respondent disputes the truth of the statement
made in such affidavit, an inquiry into the question as to whether or not the applicant is an
indigent person shall be held by the appellate court, or under its order by an officer of that
court11.

Where it is alleged that the applicant became an indigent person after the date of the decree
appealed from, the inquiry into the means of the applicant shall be made by the appellate
court or under its order by an officer of that court or by the trial court if the appellate court
considers it necessary in the circumstances of the case.12

POWER AND DUTY OF COURT

At the stage of hearing of an application, the question to be considered by the court is


whether the applicant is an indigent person. If he is, the application will be allowed and the
memorandum of appeal will be registered. If he is not, the application will be rejected.13

LIMITATION

The period of limitation for presenting an application for leave to appeal as an indigent
person to the High Court is sixty days and to other courts is thirty days. The limitation starts
from the date of the decree appealed from.14

LETTERS PATENT APPEAL

There is difference of opinions as to whether a Letters Patent Appeal lies against an order
granting or refusing to grant leave to appeal as an indigent person. The majority opinion,
however, is that an appeal is maintainable against such orders. The expression "appeal" as

11 R. 3(1)

12 R. 3(2)

13 Ram Sarup v. Union of India, (1983)4 SCC 423: AIR 1983 SC 1196

14 Art. 130, Limitation Act, 1963


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used in Order 44 is very wide and comprehensive and includes a Letters Patent Appeal. The
phrase "any person entitled to prefer an appeal" takes within its sweep not only the persons
who are entitled to prefer an appeal as of right but also the persons who can file an appeal
with the leave of the court.15

15. K.Y. Sodamma v. K. Gunneswarudu, AIR 1973 AP 295; Chandel Ranjit Kunwar v. Hiralal, AIR 1972 MP 133.
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JUDICIAL APPROACH:

1. Ram Sarup vs. Union Of India:16

In this case The appellant filed a suit as an indigent person in the Subordinate Court
questioning the validity of an order dismissing him from service. The said suit was dismissed
after contest. He filed an appeal in the High Court as a pauper along with an application
under Rule 1 of order 44 Code of Civil Procedure requesting that he may be allowed to appeal
as an indigent person. The application was dismissed by a Single Judge by a one word order
"dismissed". The appellant thereupon made an application praying for permission to pay the
requisite court fee and to prosecute the appeal. That application was also dismissed by the
same Judge on the ground that as the application for leave to appeal as an indigent person
was dismissed on merits, and not on the ground that the applicant was not an indigent
person, there was no question of granting time to the applicant to pay court fee.Thereafter
the appeallant filed an appeal in Supereme Court.

Supereme Court set aside the order of the High Court passed on May 3, 1982 in C. M. No.
525 of 1981 and remanded the case to it to pass an order granting time to the appellant to
pay the court fee as required by Rule 2 of Order 44 of the Code of Civil Procedure and to
dispose of the case in accordance with law without being influenced by the circumstance that
it had been rejected earlier on merits as observed by the learned Single Judge.

2. K.Y Sodamma vs. K. Gunneswarudu:17

In this case it was held that the phrase "any person entitled to prefer an appeal" takes within
its sweep not only the persons who are entitled to prefer an appeal as of right but also the
persons who can file an appeal with the leave of the court.

3. Shahzabdi Begam vs. Alak Nath:18

16 (1983)4 SCC 423: AIR 1983 SC 1196

17AIR 1973 AP 295

18AIR 1935 All 620


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In this particular ccase it was held that the rejection of an application for leave to appeal as an
indigent person does not ipso facto result in the rejection of the memorandum of appeal filed
along with the application.

CONCLUSION:

A person is indigent if the payment of fees would deprive one of basic living expenses, or if
the person is in a state of impoverishment that substantially and effectively impairs or
prevents the pursuit of a court remedy. However, a person need not be destitute. Factors
considered when determining if a litigant is indigent are similar to those considered in
criminal cases, and include the party's employment status and income, including income from
government sources such as Social Security and unemployment benefits, the ownership of
unencumbered assets, including real or personal property and money on deposit, the party's
total indebtedness, and any financial assistance received from family or close friends. Not
only personal liquid assets, but also alternative sources of money should be considered."

The term 'Appeal' has not been defined in C.P.C. whoever files pn appeal is called 'Appellant'.
If the defendant files an appeal he is known as 'Appellant/Defendant'. if the Plaintiff files the
appeal before the higher Court, he is known as 'Appellant/Plaintiff.' The other party who has
to answer is called 'Respondent', viz. 'Respondent/ Plaintiff or 'Respondent/Defendant.
Appeal is a creature of statute and it is not an inherent right to the subject.. Therefore, an
appeal can be filed only where it is expressly provided by a statute. Contrary to this there is
an inherent right in every person to bring a suit of civil nature.

Appeals can be made by indigent persons as per the rules provided under Order 44 of Civil
Criminal Procedure Code.

The Object and purpose of Order 44 is to enable a person, who is ridden by poverty, or not
possessed of sufficient means to pay court fee, to seek justice. Order 44 of the Code of Civil
Procedure exempts such indigent person from paying requisite court fee at the first instance
and allows him to institute suit or prosecute appeal in forma pauperis.
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BIBILOGRAPHY:

BOOKS:

The Code of Civil Procedure by M. P. Jain


Code of Civil Procedure & Limitation Act by Dr. S. R. Myneni
The Code of Civil Procedure; vol. 3, by Mulla
Code of Civil Procedure; vol. 2, by S. C. Sarkar
Sarkars Civil Court Practice and Procedure Manual by Sudipto Sarkar
The Code of Civil Procedure (CPC) by M.P.Tandon, revised by Shailender Malik
Code of Civil Procedure by C.K. Thakker
Civil Procedure Code by C.K. Takwani

WEBSITES:-
http://www.legalserviceindia.com/article/l63-Appeals.html
http://www.legalblog.in/2011/07/indigent-person-under-code-of-civil.html
http://www.legalservicesindia.com/article/article/suits-by-indigent-person-
1279-1.html
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