Code of Civil Procedure, 1908 (CPC)
Order XLIV: Appeals by Indigent Persons
Order XXXIII of the Code of Civil Procedure, 1908 lets a person who cannot pay court fee sue as an indigent person. Order XLIV is its appellate counterpart, and it is deliberately stricter. At the suit stage the court asks only whether the applicant is indigent and whether his plaint discloses a claim. At the appeal stage there is already a decree against him, and the proviso to Rule 1 adds a second filter: the court must see reason to think the decree is contrary to law, erroneous or unjust. These notes set out the Order and the comparison.
The two filters an application under Order XLIV must pass
1. Rule 1: Who May Appeal
§ Order XLIV Rule 1 (in substance) 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 persons, 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. |
§ Three things the rule does • It imports Order XXXIII. The definition of an indigent person, the contents of the application, the inquiry into means, the notice to the Government pleader and the opposite party, and the consequences of the appeal succeeding all come across, so far as they are applicable. • It requires the memorandum of appeal to accompany the application. That is not a formality: the court must read the grounds in order to apply the proviso. • It adds the merits filter. The word is shall: the court is required to reject the application unless, on the application and the judgment and decree, it sees reason to think the decree is contrary to law or otherwise erroneous or unjust. |
2. Rule 2: The Inquiry into Means
§ Order XLIV Rule 2 (in substance) The inquiry into the question whether or not the applicant is an indigent person may be made either by the Appellate Court, or, under the orders of the Appellate Court, by the Court from whose decision the appeal is preferred. Provided that if the applicant 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, unless the Appellate Court sees cause to direct such inquiry. |
i. The inquiry may be delegated. The appellate court may direct the trial court to hold it, which is sensible where the applicant's means are best examined locally.
ii. Indigence carries forward. A person already allowed to sue as an indigent person does not have to prove his means again, unless the appellate court sees cause to direct an inquiry.
iii. But the merits filter does not carry forward. Whatever happened below, the proviso to Rule 1 applies afresh at the appellate stage.
3. Order XXXIII and Order XLIV Compared
Basis | Order XXXIII: suing as an indigent person | Order XLIV: appealing as an indigent person |
|---|---|---|
Who applies | A plaintiff unable to pay the court fee on the plaint | A person entitled to appeal who is unable to pay the fee on the memorandum |
What accompanies the application | The particulars required for a plaint, and a schedule of property: Rule 2 | The MEMORANDUM OF APPEAL itself: Rule 1 |
Test of indigence | Rule 1: not possessed of sufficient means, other than exempt property and the subject matter, to pay the fee; or not entitled to property worth one thousand rupees where no fee is prescribed | The same test, imported by Rule 1 |
Merits filter | None. Rule 5 lists grounds of rejection, including that the allegations do not show a cause of action | The PROVISO TO RULE 1: the court shall reject unless it sees reason to think the decree is contrary to law, erroneous or unjust |
The inquiry into means | Rules 6 and 7: notice, examination of the applicant and evidence | Rule 2: by the Appellate Court, or by the court below under its orders, and no fresh inquiry where he already sued as an indigent person |
If the applicant succeeds in the case | Rule 10: the court fee is recoverable as if he had paid it, and is a first charge on the subject matter | The same, through the incorporation in Rule 1 |
Effect of permission | He sues without paying court fee at the outset | He appeals without paying court fee at the outset |
4. Why the Extra Filter
§ The reasoning behind the proviso At the suit stage, nothing has been decided. The plaintiff's claim has never been examined, and to refuse him a hearing because the claim looks weak would be to decide it without a trial. At the appeal stage, a court has already decided against him, after a trial. The question is no longer whether he should be heard at all, but whether the State should carry the cost of a second hearing. So the filter is comparative, not absolute. The court does not decide the appeal; it asks whether, on the application and the judgment and decree, there is reason to think the decree may be wrong. That is a low threshold, but it is a real one. And it is applied on the documents. The court reads the application, the judgment and the decree. That is why Rule 1 requires the memorandum of appeal to accompany the application. |
5. The Surrounding Provisions
i. Order XXXIII Rule 1, Explanation I: an indigent person is one who 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 prescribed fee; or, where no fee is prescribed, one not entitled to property worth one thousand rupees.
ii. Order XXXIII Rule 9: the court may, on the application of the defendant or the Government pleader, dispauper a person whose conduct is vexatious or whose means have improved.
iii. Order XXXIII Rule 15A: where an application is rejected, the court may grant time to pay the court fee, and the suit is then treated as instituted on the date of presentation of the application.
iv. Order XXXIII Rule 18: the Government may make supplementary provision for free legal services to indigent persons, and the section is consistent with the obligation under Article 39A of the Constitution.
v. Order XXXIII Rule 17 allows a defence in forma pauperis, so indigence is relevant at both ends of a suit.
6. Landmark Points
- Order XLIV Rule 1. An application to appeal as an indigent person must be accompanied by the memorandum of appeal, and the provisions on suits by indigent persons apply so far as applicable.
- The proviso to Rule 1. The court shall reject the application unless it sees reason to think the decree is contrary to law or to a usage having the force of law, or is otherwise erroneous or unjust.
- Order XLIV Rule 2. The inquiry into means may be made by the appellate court or, under its orders, by the court below.
- The proviso to Rule 2. No further inquiry is necessary where the applicant was already allowed to sue or appeal as an indigent person, unless the appellate court sees cause.
- Order XXXIII has no merits filter, which is the central difference between the two Orders.
- Order XXXIII Rules 9, 10, 15A, 17 and 18 on dispaupering, recovery of court fee, time to pay, defence in forma pauperis and free legal services apply through the incorporation in Rule 1.
7. Frequently Asked Questions
What does Order XLIV provide?
That a person entitled to appeal who is unable to pay the fee for the memorandum of appeal may apply to appeal as an indigent person, presenting the application together with the memorandum, subject to the provisions on suits by indigent persons so far as they are applicable.
What is the extra requirement at the appellate stage?
The proviso to Rule 1. The court shall reject the application unless, on a perusal of it 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.
Why must the memorandum of appeal accompany the application?
Because the court has to apply the proviso, which requires it to form a view on whether the decree may be wrong. It cannot do that without the grounds on which the decree is attacked.
Must an applicant who sued as an indigent person prove his means again?
No. The proviso to Rule 2 provides that where the applicant was allowed to sue or appeal as an indigent person in the court from whose decree the appeal is preferred, no further inquiry is necessary unless the appellate court sees cause to direct one.
Who conducts the inquiry into means?
The appellate court, or, under its orders, the court from whose decision the appeal is preferred. Delegating it to the trial court is common where the applicant's circumstances are best examined there.
Is there a merits filter under Order XXXIII?
No. At the suit stage the court examines indigence and the grounds of rejection in Rule 5, which include that the allegations do not show a cause of action, but it does not weigh the strength of the claim as the proviso to Order XLIV Rule 1 requires.
What happens if the application is rejected?
The applicant may still appeal on paying the court fee. Order XXXIII Rule 15A, applied through Order XLIV Rule 1, allows the court to grant time to pay, and where payment is made within that time the proceeding is treated as instituted on the date the application was presented.
8. Related Topics in This CPC Series
- Order XXXIII: Suits by Indigent Persons
- First Appeals: Sections 96 to 99A and Order XLI
- Section 149: Deficiency of Court Fee
- Costs under Sections 35, 35A, 35B and Order XX-A