IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 11TH AUGUST 2008 / 20TH SRAVANA 1930 CMC(P) No. 53 of 2004() --------------------- OS.709/1999 of PRINCIPAL SUB COURT,ERNAKULAM APPELLANT/DEFENDANT: ------------------------------------- C.K.ANTONY, S/O. LATE KURUVILA, CHAKIYATH HOUSE, PLOT M-8, CHANGAMPUZHA NAGAR, KALAMASSERY-682 033. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENTS: PLAINTIFF: ----------------------- MATHAI M.PAIKEDAY, S/O. MANNUAL PAIKEDAY, SENIOR ADVOCATE, RESIDING AT THRIKKANARVATTOM DESOM, S.R.M. ROAD, ERNAKULAM. R1 BY ADVS. M/S. .S.R.DAYANANDA PRABHU JOE JOSEPH KOCHIKUNNEL K.S.RAJESH GOVT. PLEADER SRI. R. LAKSHMINARAYANAN. THIS CIVIL MISC. CASE(PAUPER) HAVING BEEN FINALLY HEARD ON 11/08/2008, ALONG WITH CMC(P) NO. 60 OF 2004 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & T.R. RAMACHANDRAN NAIR, JJ. = = = = = = = = = = = = = = = = = = = = C.M.C.P. NOS. 53 & 60 OF 2004 = = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 11TH DAY OF AUGUST, 2008. O R D E R Raman, J. This is a petition seeking permission to institute the appeal as an indigent person. Originally, petitioner was permitted to institute the appeal as an indigent person against which a Special Leave Petition was preferred before the apex court. It was found that before allowing the application, due enquiry was conducted as contemplated under Order XXIII and the matter was remitted to this Court for passing fresh orders. Subsequently, the matter was posted before us. When we posted the case for further enquiry the applicant has filed a proof affidavit and he was allowed to be cross examined by both the Government Pleader as well as the party respondent. There was no evidence adduced by the respondent. 2. In the proof affidavit filed by the petitioner, it is averred that he has literally no means to pay the court fee, that in his name there is 3 acres 58 cents of property in Adimaly Village in Devikulam Taluk, but it is attached in the suit against which the present appeal is filed, that there is no CMC NOS. 53 & 60/04 :2: income from the said property and apart from that, there is a family property which is being looked after by his family members, that he is having a residential house at Edappally South, constructed in 1976-77 which is allotted by the Kerala State Housing Board , that the said properties are attached in O.S. Nos. 709/1999 and 437/2000 filed by the respondents, that he owns a 1970 model Ambassador Car which will presently worth Rs. 20,000/-, that he is a retired Government Servant and now he is getting a monthly pension of Rs. 10,500/-, that his sole income is his monthly pension, that he has no other property except those which are stated as above, that he has no job and no other source of income and that he has not disposed of any property within two months before presentation of this application. 3. The petitioner was cross-examined at length by the counsel for the respondent. In the cross examination, a specific suggestion was made as to the movables kept in the house property are not shown in the petition, to which the petitioner answered that the movables are purchased by his children, the four cots in the house are old and belong to him and there are two steel Almira and that he is using an old Ambassador 1970 model for the last fifteen years. He denied the suggestion that there is any dining table and show case made of ivory. He has also stated that his son is CMC NOS. 53 & 60/04 :3: employed abroad. To a question as to whether the amount sent by his son is not revealed by his bank account, he answered that his son is not regularly sending money and he is receiving Rs. 10,500/- by way of pension. He has stated that though the property in Adimali is in his name, he is not taking any income therefrom. Apart from the above two properties referred to in the proof affidavit, no other property is seem to have been owned or possessed by the petitioner even as per the report of the Tahsildar. Thus, the only immovable property possessed by him are under attachment - one in the present case and the other in the connected case RFA 254/2005. Therein also he has filed a petition seeking permission to institute the suit as an indigent person. 4. The respondent, however, maintained that properties which are subject matter of the suit alone are excludable in terms of Order 33 Rule 1 CPC. He placed reliance on the decision reported in Johnson v. Ouseph (2007 (1) KLT 664). He has also submitted that petitioner has not approached this court with clean hands and he has suppressed certain material facts from being disclosed in his application, in that an ambassador car possessed by him was originally not included in the items belonging to him. On the other hand, learned counsel appearing on behalf of the petitioner would submit that the property which are owned and possessed by CMC NOS. 53 & 60/04 :4: the petitioner are under attachment and therefore, he cannot sell the same and what is to be looked into is whether he has got sufficient means to pay the court fee since he cannot sell the property and raise the amount. For the limited purpose of considering as to whether he has got sufficient means, this can not be taken into account. As regards the non inclusion of the ambassador car, it is submitted that it was an omission to include it earlier but he has subsequently, amended the application by including the ambassador car also and this court allowed the amendment application. As such, there is no omission to include the ambassador car as alleged. 5. Heard. It is true that as per Order 33 Rule 1 CPC the property which is subject matter of the suit is to be excluded and the contention for the respondents in this regard is supported by the decision of the Division Bench of this Court as well. Even as per Order 33 Rule 1 and the explanation thereto, a person is an indigent person (i) 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. Therefore, so long as the CMC NOS. 53 & 60/04 :5: attachment continues the buyer cannot be conferred a valid title by the petitioner by the sale of the property. If so, he cannot sell the property already under attachment and raise the funds for payment of court fee. Besides the two properties mentioned above, no other properties are possessed by the petitioner. The only other property worth is the ambassador car of the year 1970 model, which on a plain estimate, will cost to only Rs. 20,000/-. In the circumstances, we find that the petitioner has established that he has no sufficient means to pay the court fee prescribed under the two appeals. In the circumstances, these C.M.C.Ps are allowed. P.R. RAMAN, (JUDGE) T.R. RAMACHANDRAN NAIR, (JUDGE) knc/-