Ray, J.:— The facts leading to this reference are these:

The unsuccessful plaintiffs filed an application for permission to prefer an appeal in forma pauperis under Order 44, Rule 1 of the CPC, from the judgment and decree of the Subordinate Judge Berhampur, dated 1-5-67. They had been permitted to sue in forma pauperis in the court below. On 25-8-67, the Division Bench before which the petition came up for admission, passed the following order:

“Admit. Issue Notice.”

2. This means that the Court was satisfied prima facie about the erroneous character of the decree under appeal after hearing the applicant or his pleader under Order 44, R. 1(2), and then admitted the application. In accordance with this order, notice was issued to the State and the opposite parties. The notice was in the following form:—

“Take notice that an application, a copy whereof is annexed herewith, has been made to this Court by the above-named petitioner and you are hereby directed to appear before this Court in person or by Advocate on 22-11-67, and show cause why the application should not be granted or such other order be passed as this Honourable Court may deem fit.”

3. After service of the notice, this case was listed for hearing. The opposite parties resisted the prayer for leave to appeal as paupers. Thereupon, a point was raised whether at this stage, the Court had jurisdiction to go into the question whether the petition satisfied the requirements of sub-rule (2) of Rule 1 of Order 44 of the CPC, or it is to be confined to the question of pauperism of the petitioners only. The Division Bench finding conflict of opinion on this question prevailing in different High Courts in India, referred the following questions to the Full Bench:

(i) Whether when a Court before which the application to file an appeal in forma pauperis under Order 44, Rule 1 of the CPC, (has been presented), does not reject the application under sub-rule (2) of R. 1 of Order 44, but passes an order admitting the same, and issues notice on the opposite parties to show cause, why the applicant should not be allowed to prosecute the appeal as a pauper, it is open to the Court at the hearing stage of the application to go into the question as to the requirements of Order 44, Rule 1(2) and reject the application on the ground that the requirements mentioned therein are not satisfied, and

(ii) Whether the Full Bench decision of the Patna High Court reported in AIR 1931 Pat 183 (FB) is binding.”

4. The view which holds that the Court, after admission of an application under Order 44, R. 1, is still competent, at the hearing stage of that application, on notice to the respondent, to go into the question whether the requirements of Order 44, Rule 1(2) of the CPC, are satisfied or not, is represented in the following decisions: AIR 1929 Lah. 514; AIR 1931 Pat 183 (FB); AIR 1933 Lah 256; AIR 1934 Lah 72; AIR 1934 All 424; AIR 1937 Nag 150; AIR 1958 Raj 133; AIR 1939 All 715; AIR 1951 Punj 173; AIR 1960 Guj 40 (FB). The contrary view is subscribed to by an equal number of High Courts. They are to be found in the following decisions: AIR 1933 Mad 658; AIR 1936 Mad 661; AIR 1956 Cal 530; AIR 1959 Bom 67; AIR 1961 Andh Pra 65; AIR 1961 Cal 346 (FB); AIR 1961 Ker 309; (1962) 1 Mad LJ 420; 1962 Mys LJ 423 and AIR 1968 Mad 390.

5. The reasons on which the view that the respondent to a pauper appeal (who is also designated as opposite party in the application to file an appeal) in forma pauperis accompanying the memo of appeal, is entitled to be heard on the question as to whether the conditions of Order 44, Rule 1(2) of the CPC, have been satisfied or not at the hearing stage of the application, is based are.—

(a) Order 44, Rule 1 of the CPC, imports the procedure laid down in respect of pauper suits and Rules 5 and 7 of Order 33 of the CPC, read conjointly support this view;

(b) Form No. 1.1, appendix G Code of Civil Procedure, which is a prescribed form of notice of appeal in forma pauperis, entitles the respondent to impeach the tentative satisfaction of the appellate court reached under Order 44, Rule 1(2), that the decree under appeal is erroneous; and

(c) The tentative decision under O. 44, R. 1(2) that the decree is erroneous having been made to the prejudice of the respondent and behind his back is open to challenge by the respondent when he appears in response to the notice issued in the pauper matter as the said decision affects his vested right. This is based on the analogy of the decision of the Privy Council rendered in the case of Krishna-swami v. Ramaswami, AIR 1917 PC 179 with regard to the procedure to be followed in dealing with an application under Section 5 of the Limitation Act.

6. The Patna Full Bench decision AIR 1931 Pat 183 referred to in the order of reference is founded on these reasons.

7. The contrary view repels these reasons on the following grounds:

(a) The main body of Order 44, Rule 1 does not attract all the provisions of O. 33, but only those portions which are applicable to appeals. Order 44, Rule 1(2) is not a circumstance enumerated in any of the five clauses of Rule 5 of O. 33 which may be considered twice under Order 33, Rule 7(2).

(b) Form 11 of Schedule 1 of Appendix G.C.P.C, is to be issued after the first duty of the Court to consider whether the decree is contrary to law or to usage having the force of law or is otherwise erroneous or unjust has been discharged. Therefore, the respondent is to show cause in respect of matters confined to clauses a, b, c and e of Order 33, Rule 5, as cause of action referred to in clause (d) has merged in the decree; and

(c) There is no vested right in the res-pendent to prevent his adversary from preferring an appeal as a pauper on the ground that the decree is erroneous, inasmuch as he could not have prevented the applicant to file his appeal on payment of court-fees and get it admitted by showing that decree is contrary to law and otherwise erroneous and unjust. At the most, the respondent may claim to contest the disputed facts enumerated in clauses a, b, c and e of Order 33, Rule 5 on proof of which the application to file an appeal in forma pauperis is to be rejected.

8. Order 44, R. 1 of the CPC, now comprises two sub-rules, sub-rules (1) and (2). Originally Order 44 had no sub-rule (2), but there was a proviso to sub-rule (1). This proviso to sub-rule (1) was, by of the CPC. Amendment Act, 1956, omitted and it was renumbered with some little modification as sub-rule (2).

9. Before amendment, Order 44, was in the following terms:—

“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 as a pauper, subject, in all matters, including the presentation of such application to the provisions relating to suits by paupers, in so far as those provisions are applicable;

Provided that the Court shall reject the application unless, upon a perusal thereof and of the judgment and decree appealed from it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust.”

10. By the amendment this proviso has been deleted and the sub-rule has been introduced which runs as follows;

(2) The appellate court, after fixing a day for hearing the applicant or his pleader and hearing him accordingly if he appears on that day, and upon a perusal of the application and of the judgment and decree appealed from, shall reject the application, unless it sees reason to think that the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust.”

11. It is clear that the proviso is substantially re-enacted as sub-rule (2) to R. 1 of Order 44 of the CPC, except that a right to be heard is expressly conferred on the pauper applicant on the question whether the judgment and decree sought to be appealed from are contrary to law or to some usage having the force of law, or are otherwise erroneous or unjust. It is also clear that in deciding the only question open at that stage, namely, whether to reject the pauper application in limine or to issue notice to the respondent on the question of pauperism, the appellate court is not to launch into an elaborate inquiry and to travel beyond the judgment, the decree, and the pauper application.

12. It is clear, on a perusal of Order 44, Rule 1 of the CPC, that an application accompanied by a memorandum of appeal has to be presented, and after the application praying for permission to appeal as a pauper is allowed that the accompanying memorandum of appeal is to be registered as a regular appeal, and that the provisions of Order 33 shall apply, mutatis mutandis, to pauper appeals in all matters including the presentation of the application under Order 44, Rule 1. sub-rule (2) casts a duty upon the appellate court, after hearing the applicant or his pleader on a day posted for hearing of the application, to satisfy itself that the decree is contrary to law or usage having the force of law, or is otherwise erroneous or unjust and to reject the application in limine, if such satisfaction is not reached. Before amendment, even the pauper applicant had not a right to be heard at the stage when the Court discharged its duty under the proviso. But obviously, the applicant had a stake at that stage. The amendment, therefore, gave him a right to address the Court at that preliminary stage, because any ex parte determination by the Court would prejudice him. Similar right was not given to the respondent patently because, at the final hearing of the appeal, when it was properly constituted, he would have full scope to address the Court on that question. The implication is clear that the respondent is not to be heard on the erroneous character of the decree at any stage before final hearing of the appeal. If the legislative intention was otherwise, then there should have been express terms in the rule itself conferring upon the respondent a right to be heard while investing the applicant with such a right.

13. Rule of O. 44 hi providing that the application for leave to appeal as a pauper shall be, subject in all matters, including the presentation of such application, to the provisions relating to suit by paupers, incorporates O. 33, Rules 5, 6 and 7 into it. The procedure that is contemplated under Rules 5, 6 and 7 of Order 33 is also to be followed under O. 44, in so far as they can be made applicable to the appeal.

14. It is relevant, for the purpose of appreciating the scope and import of O. 44, Rules 1 and 2, to refer to Rules 5, 6 and 7 of Order 33. Rule 5 of Order 33 says:

“The Court shall reject an application for permission to sue as a pauper:—

(a) Where it is not framed and presented in the manner prescribed by Rules 2 and 3, or,

(b) Where the applicant is not a pauper or,

(c) Where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as a pauper, or,

(d) Where his allegations do not show a cause of action, or

(e) Where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter.”

15. Rule 6 runs as follows:

“Where the Court sees no reason to reject the application on any of the grounds stated in Rule 5, it shall fix a day (of which at least ten days' clear notice shall be given to the opposite party and the Government pleader) for receiving such evidence as the applicant may adduce in proof of his pauperism, and for hearing any evidence which may be adduced in disproof thereof.”

16. Rule 7, sub-rule (2) says:

“The Court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application and of the evidence (if any) taken by the Court as herein provided, the applicant is or is not subject to any of the prohibitions specified in Rule 5.”

17. Sub-rule (3) of Rule 7 provides:

“The Court shall then either allow or refuse to allow the applicant to sue as a pauper,”

18. It will be seen that the Court may re-Sect an application for permission to sue as a pauper if the allegations in the plaint do not show a cause of action as provided in Clause (d) of Rule 5. If the Court does not reject the application on that ground and issues notice to the defendant to come and object to the application for permission to sue as a pauper, he is still entitled to dispute the; tentative conclusion of the Court in regard to the matter covered by clause (d) of Rule 5, and the Court is bound to hear that matter over again in the presence of the defendant. It is argued that Order 44, Rule 1 imports the procedure relating to pauper suits, set out above which entitles the respondent to raise the contention that the decree is not erroneous in nature when he appears in response to the notice in the pauper matter. On reading the quoted Rule 7(2) of Order 33, it is clear that the respondent may offer any argument with regard to any of the prohibitions specified in Rule 5 after he receives notice of the pauper application, but the matter under Order 44, Rule 1(2) is not a prohibition specified in any of the clauses of Rule 5, Order 33 and is, therefore, not open to be canvassed by the respondent at the final hearing of the pauper application. The very insertion of the proviso to Order 44. Rule 1 and the enactment of the same as sub-rule (2) in face of the provision in Rule 1(1) of Order 44 that:—

“Any person …… may be allowed to appeal as a pauper, subject, in all matters ……… to the provisions relating to suits by paupers, in so far as those provisions are applicable….”

19. Clearly indicates that the matter covered by sub-rule (2) is outside the scope of Rule 5, Order 33, because otherwise enactment of sub-rule 2 would be redundant and superfluous.

20. It is next to be seen if there is anything in form No. 11, appendix G Code of Civil Procedure under which the respondent would acquire a right to show that the decree is not contrary to law or to usage having the force of law or is not otherwise erroneous or unjust. The material portions of the form are as follows:

“Notice is hereby given to you that if you desire to show cause why the applicant should not be allowed to appeal as a pauper an opportunity will be given to you for doing so…….”

21. It appears to me that the respondent is noticed to show cause against pauperism only at the final hearing of the application and has no reference to the date of hearing fixed under sub-rule (2) of Order 44, Rule 1. The form expressly indicates on its body that it is to be issued under sub-rule (1) which means a stage subsequent to sub-rule (2) stage. As already indicated earlier, by the legislative enactment of sub-rule (2) right to be heard is conferred exclusively on the pauper applicant, not on the respondent, when the Court is considering the question whether the decree is erroneous or not in order to decide whether to reject the pauper application or to entertain it After he decides to entertain the application, a notice in form 11 is issued. That makes it abundantly clear that notice is issued with reference to pauperism only.

22. Another argument advanced on the analogy of the decision of the Privy Council reported in AIR 1917 PC 179 already referred to, was that an order cannot be passed against a party behind his back. It is said that like a successful party in a time-barred appeal, the respondent (opposite party) here has acquired a valuable right of a final decree, on account of pauperism of the applicant, and he Is, therefore, entitled to be heard at the time of admission of pauper application. This argument is impossible to sustain. Firstly, there is no vested right in the respondent as is found in the case of a successful party who has the benefit of his opponent's claim being barred by limitation. In the present case the application for permission to appeal as a pauper having been filed, the matter is sub judice and the merits are yet to be adjudicated by the superior Court. As already stated, sub-r. 2, casts a duty on the Court. Performance of that duty is a condition precedent for entertaining the application and for proceeding with further. There is thus no question of any vested right of the respondent being affected by an order made by the Court under sub-rule 1(2) entertaining the application.

23. On a consideration of the provisions of law on the point and the various decisions having a bearing thereon, we are clearly of opinion that the first question referred to the Full Bench must be answered in the negative, that is to say, the Court which has received an application for leave to file an appeal in forma pauperis under Order 44, R. 1 of the CPC and has not rejected it under Order 44, Rule 1(2) and has passed an order admitting it and has issued notice to the respondent (opposite party) to show cause against grant of permission to prosecute the appeal as a pauper, cannot, — at the hearing stage of the application, go into the question as to the requirements of Order 44, Rule 1(2) and reject the application on the ground that those requirements are not satisfied. The case in AIR 1931 Pat. 183 (FB), in my opinion, has been wrongly decided.

24. In view of our answer to the 1st question referred, it would be academic to express any opinion on the second question. These two points have been referred to the Full Bench in accordance with Rules 1 and 2 of Chapter V of the Rules of High Court of Orissa. Rule 6 of that Chapter provides that one Full Bench decision may be reversed by a subsequent Full Bench. Assuming that the Patna Full Bench decision reported in AIR 1931 Pat. 183 was binding, it stands reversed by our answer to the first question. It is, therefore, unnecessary to express any opinion on the second question referred.

25. This case arises out of an application for permission to appeal in forma pauperis and only two questions of law have been referred to the Full Bench.

26. The case must now be placed before the appropriate Division Bench for disposal in the light of the opinion expressed by us.

27. In view of the conflicting decisions prevailing, we do not propose to make any order as to costs of the hearing before us.

28. G.K Misra, C.J:— I agree.

29. R.N Misra, J.:— I agree.

30. Reference answered.