Mudholkar, J.:— This is an application for revision under s. 115 of the Civil Procedure Code of an order of the Second Additional District Judge, Amraoti, dismissing the applicant's application for leave to appeal as pauper.

2. The applicant preferred an application before the District Court, Amraoti, on March 14, 1955. The application went up before Mr. R.N Bongirwar, who was the then Second Additional District Judge, Amraoti. On April 16, 1955, the learned Judge made the following order:

“There is reason to believe that the trial Court's decree is erroneous. Notice of the pauper application be given to the non-applicants and Collector as similar to O. 33, r. 6 (sic).”

3. When the matter came up again before the Second Additional District Judge, Mr. Bongirwar was no longer there, and his place was taken by Mr. V.W Samudra. Before Mr. Samudra a contention was raised on behalf of the non-applicant that the decree appealed from was not contrary to law or usage having the force of law or was not otherwise erroneous or unjust. This contention was entertained and considered by Mr. Samudra who ultimately accepted it. In the revision application before this Court against the order of Mr. Samudra it was contended on behalf of the applicant that the Court having once expressed an opinion that there was reason to believe that the trial Court's decree was erroneous it was not entitled to consider the matter afresh even though the non-applicant had not been heard before the Court expressed its view on the matter. According to the learned counsel for the applicant, Mr. Samudra acted without jurisdiction in going into the question and that, therefore, his order refusing leave to the applicant to appeal as pauper should be set aside. This matter came up before one of us (Mudholkar, J.), but was referred to a Division Bench on the ground that there was a conflict of authorities on the point and as the matter was of sufficient importance it needed consideration at the hands of a Division Bench. That is how the matter has come up before us.

4. It was held by Pollock, J. in Bkairanlal v. Ambikaprasad . [1937] Nag. 463. that in appeal in which permission to appeal in forma pauperis has been given ex parte, the respondent is entitled to impeach the permission given by attacking the finding of pauperism or to urge that the decree is not contrary to law or usage having the force of law or is not otherwise erroneous or unjust. In coming to this conclusion, the learned Judge relied upon the decisions in Banarsi Das v. Hunshi Ram . 1933 I.L.R 15 Lah. 132., Powdhari v. Ram Sanwari . 1934 I.L.R 57 All. 440, F.B and Somasundaram Chettiar v. Arunachalam Chettiar . 1932 I.L.R 55 Mod. 982.. We may point out that in the Lahore case the Chief Justice, who ordered notice of the application to issue, did not state in his order that he considered that the decree sought to be appealed from was contrary to law or to some usage having the force of law or was otherwise erroneous or unjust. No doubt in the course of their judgment the learned Judges have accepted the principle that an order which is passed behind the back of a party cannot operate to the prejudice of that party, but that principle need not have been invoked at all in that case because in point of fact no order whatsoever to the “prejudice of any party” had been passed by the admitting Judge. Apart from that, as we will show hereafter, duty is cast upon the Court to be satisfied as to whether the decree in a case of this kind is contrary to law or usage having the force of law or is otherwise erroneous or unjust, and that according to the law as it stood prior to its amendment in the year 1955, not even the appellant had a right to be heard before the Court expressed its opinion on the matter.

5. Even in the Allahabad case it would appear that the Judges who ordered notice of the appeal to issue had not considered the question as to whether the requirements of the proviso to r. 1 of O. XLIV of the Civil Procedure Code were satisfied. It would appear that when the matter went up before a Division Bench the respondents sought to challenge the tenability of the appeal on the ground that the requirements of the proviso were not satisfied. It was contended on behalf of the appellant that it was not open to the respondents to raise an objection of this kind. There was a conflict of authorities on this question and, therefore, the learned Judges of the Division Bench referred the following questions for determination by a Full Bench (p. 441):

“…Is it open to a court, hearing an application under Order XLIV, rule 1 of the Civil Procedure Code, after issuing notice to the opposite party and the Government Advocate, to consider the question whether the decree appealed from is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust, or is it precluded from determining that question by the fact that the order issuing notice impliedly held that the decree was contrary to law or usage having the force of law or that it was otherwise erroneous or unjust, or is it precluded from, considering this question by the fact that notice was issued?”

6. To this the answer of the Full Bench was as follows (p. 445):

“Our answer to the question referred to us, therefore, is that it is open to the court to consider the question whether the decree appealed from is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust, and the court is not precluded from determining such question merely because notices to the opposite party and the Government Advocate have been issued previously.”

7. It will be clear from this answer of the Full Bench that it has not expressly accepted the view that the respondent is entitled to be heard on the question as to whether the conditions of the proviso to r. 1 of O. XLIV have been satisfied or not. Indeed, while considering the decision of the Full Bench, Bennet and Verma, JJ. observed in Ram Kailash Kunwari v. Ishwar Saran (p. 918):

“…In that case the referring order shows, at page 962 (1934 A.L.J 961) ‘By the order issuing notice the Division Bench did not express any opinion as regards the question whether the decree appealed from is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust’. The Full Bench decided that under these circumstances the mere issue of notice did not preclude the Bench hearing the matter after the issue of notice from considering the question whether the decree appealed from is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust… On page 965 the full Bench further observed:

‘We do not, of course, mean to lay down that the court is bound to issue notice to the opposite party, nor do we lay down that once notice has been issued the court is compelled to hear the opposite party and cannot change its mind and review its previous order under section 151 of the Code of Civil Procedure.’ The Full Bench therefore does not support the proposition advanced by Mr. Baleshwari Prasad (Counsel for the respondents).”

8. It will thus be clear that the Full Bench decision does not support the view taken by Pollock, J. On the contrary, this later decision of the same High Court goes clearly against the view of Pollock, J. inasmuch as it is to the effect that the word ‘perusal’ in the proviso to r. 1 of O. XLIV implies that the matter is not to be the subject of argument by counsel and that there is no right of counsel to argue. No doubt, the learned Judges pointed out that the Court may, if it so desires, obtain the assistance of counsel, but the Court is not bound to hear counsel on the point. But that is entirely a different matter. There is a difference between a Court of its own accord hearing counsel on the point and a Court doing so by virtue of any provision of law.

9. Shri Kherdekar, who appears for the non-applicant before us, not only relied upon the Full Bench decision of the Allahabad High Court to which we have just referred but also to the decision of the Patna High Court in Tilak Mahton v. Akhil Kishore. In that case it was held that the respondent was entitled to be heard on the question as to whether the decree sought to be appealed from under r. 1 of O. XLIV is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust. The reasons on which this decision is based are three. In the first place, it is said that the form of notice prescribed by the Code entitled the respondent to raise the contention that the decree sought to be appealed from did not satisfy the conditions of the proviso to r. 1 of O. XLIV. The second reason given is that r. 1 of O. XLIV imports the procedure laid down in respect of pauper suits and that rr. 5 and 7 of O. XXXIII read together entitled the respondent to raise a contention of this kind. The third reason given is that on the analogy of the decision of their Lordships of the Privy Council in Krishnaswami Panikondar v. Romaswami Chettiar with regard to the procedure to be followed while dealing with an application under s. 5 of the Limitation Act, no order can be passed against a party behind its back. All these arguments have been dealt with in the judgment of Ramesam and Madhavan Nair, JJ. in Somasundaram Chettiar v. Arunachalam Chettiar. In regard to the first argument Ramesam, J. has observed (p. 986):

“…It seems to me that the Form appended to the Code should not be allowed to extend the meaning of the sections and the rules in the Code. The Form has to be construed with reference to Order XLIV, rule 1, and not that Order XLIV, rule 1, should be construed with reference to the Form. In my opinion, Form No. 11 only refers to cases where notice is given with reference to rules 1 and 2 and the respondent is given an opportunity; and, as the notice is given only with reference to pauperism, the Form itself only gives an opportunity to the respondent to show that the applicant is not a pauper. It has nothing to do with the question mentioned in the proviso.”

10. We are in entire agreement with this view.

11. As regards the second argument, the learned Judge has observed (p. 986):

“…Rule 7, clause (2), which refers us to rule 5, shows that, if the plaintiff's allegations do not show a cause of action, the pauper application should be rejected. But, reading rules 7 and 5, it is clear that the provisions of these rules are not directly applicable to pauper appeals. They are applicable only if the language of these rules can be altered. In my opinion, these rules are not applicable to appeals and, because these rules are not applicable and the appellate Court cannot address itself to the question whether the plaint shows a cause of action, the Legislature proceeded to enact a provision analogous in the proviso, viz., that the appellate Court should address itself to the question whether the lower Court's decision is erroneous or unjust. The insertion of the proviso is practically an additional argument that rules 5 and 7 are inapplicable to appeals…. Once the proviso is there, I do not think we can fall back upon Order XXXIII, rules 5 and 7. The proviso being complete by itself, we cannot import into it the idea that apart from the rule the respondent is as a matter of general principle entitled to notice before leave is given.”

12. Then the learned Judge observed (p. 987):

“…It is true that an order passed without notice to the respondent ought not to be binding upon him; but nobody says that leave once having been given the order granting leave is conclusive that the judgment appealed against is erroneous or contrary to law; and at the actual hearing of the appeal the respondent would have an opportunity of showing that the decree appealed against is in accordance with law and is not erroneous or unjust”

13. Incidentally, we may mention that the last preceding observations have been quoted by Pollock, J. in support of his conclusion but as will now be apparent they do not justify that conclusion. Those observations do not mean that according to Ramesam, J. the respondent can challenge at the time of granting leave the view expressed by the Judge that the appeal does satisfy the requirements of the proviso to r. 1 of O. XLIV. They only mean that when the appeal is heard on merits the respondent can show to the Court that the judgment is not contrary to law etc. and that leave was wrongly granted.

14. We may incidentally make mention of another fact and it is that while dealing with this case the Full Bench of the Allahabad High Court observed in Powdhari v. Ram Sanwari (p. 443):

“The Madras High Court in Somasundaram Chettiar v. Arunachalam Chettiar has expressed an opinion which is partly in favour of the applicant before us, but not wholly so. The decision appears to be based to a large extent on the long established practice which prevails in that Court.”

15. Now, though the learned Judges of the Madras High Court have made a reference in passing to the practice prevailing there they have, as will be apparent from what we have quoted above, considered the matter on merits and met all the arguments in favour of the view which found acceptance in Tilak Makton v. Akhil Kishore. In our opinion, it would not be right to say that the Madras decision is based to a large extent or even partially on the practice which prevailed in that High Court.

16. As regards the third argument, we entirely agree with the following observations of Madhavan Nair, J. in the Madras case (p. 992):

“Lastly, it was urged, having regard to the decision of the Privy Council in Krisknasami Panikondar v. Ramasami Chettiar, that, as in the case of the successful party in a time-barred appeal who_has obtained a ‘valuable right’ of a final decree in his favour by mere effluxion of time, the respondent here has also acquired ‘the valuable right’ of a final decree in his favour on account of the ‘pauperism’ of the appellant, and that therefore as in the other case the respondent in this case also should be heard at the time when the appeal is admitted. It is clear to my mind that the two cases are not at all similar and that the observations of the Privy Council in Krishnasami Panikondar v. Ramaswami Chettiar have no bearing on the question before us which in my opinion should be decided with reference to the special rules provided for the purpose in the Code itself.”

17. We may also point out that here the proviso enacts a condition precedent for entertaining an application and for proceeding with it further. That condition being that the decree sought to be appealed from appears contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust. Where a duty is cast on a Court there is no question of hearing any party before proceeding to perform that duty. Moreover, there is no question of there being a vested right in favour of the respondent which would be taken away by the order made by the Court to the effect that the appeal fulfils all the requirements of O. XLIV, r. 1, as is the case where the period of limitation prescribed for an appeal has elapsed and yet the appellant wants his appeal to be entertained.

18. We may advert to a recent decision of the Calcutta High Court in Panchu Bala v. Nikhil Rajan in which the view taken by the Patna High Court in the Full Bench case has been considered and rejected, and it is held that when a Court, before which an application to file an appeal in forma pauparis is made, does not reject the application in view of the proviso to that rule but issues notice on the opposite party to show cause why the application to prosecute the appeal as a pauper should not be allowed, it is not open to the Court, at a later stage, to reject the application on the ground that under the proviso it is bound to reject it. It is not necessary for us to go as far as the Calcutta High Court has gone because here not merely a notice of the application was issued to the respondent but the Court also found to the effect that the decree of the trial Court was erroneous.

19. On a consideration of the provisions of law applicable to this case and of the various decisions bearing on the point, we have no doubt that the contention of the applicant before us is correct, and the application for revision should be allowed. Accordingly, we allow the application for revision, and set aside the order of the Second Additional District Judge, Amraoti, refusing leave to the applicant to appeal as pauper. The point which the learned Judge had to decide was whether the applicant is pauper. He has not decided that point but merely stated in para 2 of his order that the Deputy Commissioner has reported that the applicant is a pauper. It will now be necessary for the learned Judge to give a finding on this point. If he finds in favour of the applicant on this point he will have to accord leave to the applicant to appeal as a pauper.

20. We understand that subsequent to the dismissal of the application of the applicant for leave to appeal as pauper, the applicant was granted some time to pay Court-fees. The applicant was not able to pay the Court-fees and thereupon the learned Judge dismissed the appeal.

21. That order was based on the previous order of the learned Additional District Judge refusing leave to the applicant to appeal as pauper. Since that order has now been set aside, it follows that the subsequent order of the learned Judge dismissing the appeal for non-payment of Court-fees also fails.

22. Costs of this application will abide the event.

23. Application allowed.