SRI.SREEPAD RAO DESAI vs SMT.D.PADMAVATHAMMA (DEAD0

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IN THE HIGH COURT OF KARNATAKA AT DHARWAD



R
TH
DATED THIS THE 15 DAY OF JULY, 2026


BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

WRIT PETITION NO. 104337 OF 2021 (GM-CPC)
C/W
WRIT PETITION NO. 100011 OF 2019 (GM-CPC)

IN WP NO. 104337/2021:




BETWEEN:

SRI. SREEPAD RAO DESAI
S/O. LATE DESAI RAGHAVENDRA RAO,
AGE: 69 YEARS, OCC. RETD. EMPLOYEE
IN KARNTAKA POWER CORPORATION,
R/O. SHAKTI NAGAR-584170,
KARNATAKA.
… PETITIONER
(BY SRI. N.V. YAJI, ADVOCATE)

AND:

1. SMT. RADHA BAI DESAI
W/O. LATE DESAI JAYASHIMHA RAO,
AGED ABOUT 76 YEARS, OCC. NIL,
R/O. D.NO.4, WARD NO.16,
GOLD SMITH STREET,
BALLARI-583101,
KARNATAKA.

2. SMT. MANJULA W/O. RAMA RAO,
AGED ABOUT 64 YEARS, OCC. HOUSEHOLD,
R/O. D.NO.4, WARD NO.16, GOLD SMITH STREET,
BALLARI-583101, KARNATAKA.








Digitally signed
by
MOHANKUMAR
B SHELAR
Location: HIGH
COURT OF
KARNATAKA

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3. THE STATE OF KARNATAKA,
REPRESENTED BY
THE DEPUTY COMMISSIONER, BALLARI.

4. DESAI RAMA KRISHNA
S/O LATE DESAI JAYASHIMHA RAO,
AGE: 54 YEARS,
OCC. AGRI. AND SELF EMPLOYED,
R/O. H.NO.28/4, “VEDAVYAS NILAYA”
BEHIND GOVT. PRIMARY SCHOOL,
PATEL NAGAR, BALLARI-583101,
KARNATAKA.

5. DESAI RAGHOTTAMA
S/O LATE DESAI JAYASHIMHA RAO,
AGE: 52 YEARS, OCC. RETIRED EMPLOYEE
IN KRISHNA BHEEMA SAMRUDDHI
LOCAL AREA BANK, MEHBOOB NAGAR AP,
R/O. SRI BHOOTATAJ TEMPLE IN
JAMAKHANIDI ACHAR COMPOUND,
RD
SATYA NARAYAN PET, III CROSS,
BALLARI-583101, KARNATAKA.

6. SMT. GIRIJA P. MURALIDHAR
D/O. LATE DESAI JAYASHIMHA RAO,
AGE: 50 YEARS, OCC. NIL,
R/O. NEAR BHAGYA NAGAR,
WATER TANK, KOPPAL-583231,
(KARNATAKA).

7. SMT. BHARATI PRASANNA KEELI
D/O. LATE DESAI JAYASHIMHA RAO,
AGE: 47 YEARS, OCC. NIL,
R/O. NEAR SRI BADARI NARAYAN TEMPLE,
JAWAHAR NAGAR, EAST END,
RAICHUR-584103, KARNATAKA.

8. DESAI GOPINATH
S/O. LATE DESAI JAYASHIMHA RAO,
AGE: 45 YEARS, OCC. AGRICULTURIST,

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R/O. HALVI-518333, KOWTALAM MUNDALAM,
TQ. ADONI, DIST. KURNOOL (A.P.)

9. DESAI ANAND
S/O. LATE DESAI JAYASHIMHA RAO,
AGE: 43 YEARS,
OCC. AGRICULTURIST AND PUROHIT,
R/O. SRI. BHOOTATAJ TEMPLE
IN JAMAKHANIDI ACHAR COMPOUND,
RD
SATYA NARAYAN PET, III CROSS,
BALLARI-583101, KARNATAKA.

10. DESAI PUROSHOTTAM
S/O. LATE JAYASHIMHA RAO,
AGE: 41 YEARS, OCC. AGRICULTURIST,
R/O. SRI BHOOTATAJ TEMPLE IN
JAMAKHANIDI ACHAR COMPOUND,
RD
SATYA NARAYAN PET, III CROSS,
BALLARI-583101, KARNATAKA.

11. SMT. VIJAYA LAKSHMI CD SHREEDHAR
D/O. LATE DESAI JAYASHIM RAO,
AGE: 39 YEARS, OCC. NIL,
R/O. “SUVARNA NILAYA”
RAGHAVENDRA COLONY, II-STAGE,
BALLARI-583101, (KARNATAKA).

… RESPONDENTS

(BY SRI. SHRIPAD SHASTRI, ADVOCATE FOR R1 AND R2;
SRI. SHARAD V. MAGADUM, AGA FOR R3;
NOTICE TO R4-R11 ARE DISPENSED WITH)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT IN THE NATURE OF CERTIORARI AND QUASH
THE ENTIRE PROCEEDING PENDING ON THE FILE OF THE
LEARNED PRINCIPAL SENIOR CIVIL JUDGE AND CJM, BALLARI

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IN BEARING O.S. NO.245/2018 VIDE ANNEXURE-L TO THE
WRIT PETITION AS IT IS ILLEGAL AND UNCONSTITUTIONAL
AND ETC.,

IN WP NO. 100011/2019:
BETWEEN:

1. SRI. SREEPAD RAO DESAI
S/O LATE SRI. D.RAGHAVENDRA RAO,
AGED ABOUT 65 YEARS, OCC: PENSIONER,
NOW RESIDING AT: H.NO.153, MULLAR ROAD
BALLARI.
... PETITIONER
(BY SRI. N.V. YAJI, ADVOCATE)

AND:

1. SMT. D.PADMAVATHAMMA (DEAD)
W/O LATE SRI D. RAGHAVENDRA RAO,
REPRESENTED BY HER NEXT FRIEND
SMT. MANJULA W/O SRI. RAMA RAO,
AGED ABOUT 63 YEARS, OCC: HOUSEHOLD,
R/O. DOOR NO.4, WARD NO.16,
GOLDSMITH STREET, BALLARI.

2. SMT. RADHA BAI DESAI
W/O LATE SRI. DESAI JAYASHIMHA RAO,
AGED 73 YEARS, OCC: HOUSEHOLD,
R/O. DOOR NO.4, WARD NO.16,
GOLDSMITH STREET, BALLARI.

3. SMT. MANJULA W/O SRI. RAMA RAO,
AGED ABOUT 63 YEARS, OCC: HOUSEHOLD,
R/O. DOOR NO.4, WARD NO.16,
GOLDSMITH STREET, BALLARI.

4. THE DEPUTY COMMISSIONER,
BALLARI, DIST. BALLARI.

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5. SRI. DESAI RAMA KRISHNA
S/O LATE SRI DESAI JAYASHIMHA RAO,
AGE: 59 YEARS, OCC: AGRL. AND SELF EMPLOYED,
R/O. H.NO.28/4, "VEDAVYAS NILAYA",
BEHIND GOVERNMENT PRIMARY SCHOOL,
PATEL NAGAR, BALLARI (KARNATAKA).

6. SRI. DESAI RAHOTTAMA
S/O LATE SRI. DESAI JAYASHIMHA RAO,
AGE: 57 YEARS, OCC: EMPLOYEE IN KRISHNA
BHIMA SAMRUDDHI LOCAL AREA BANK,
MEHABOOB NAGAR,
R/O. SRI. BHOOTARAJ TEMPLE IN
JAMAKHANIDI ACHAR COMPOUND,
SN PETE, BALLARI (KARNATAKA).

7. SMT. GIRIJA P. MURALIDHAR
S/O LATE SRI. DESAI JAYASHIMHA RAO,
AGE: 55 YEARS, OCC: NIL,
R/O. BHAGYA NAGAR WATER TANK,
KOPPAL (KARNATAKA).

8. SMT. BHARATHI PRASANNA KEELI
S/O LATE SRI. DESAI JAYASHIMHA RAO,
AGE: 52 YEARS, OCC: NIL,
R/O. NEAR SRI. BADARI NARAYAN TEMPLE,
JAWAHAR NAGAR, EAST END,
RAICHUR (KARNATAKA).

9. SRI. DESAI GOPINATH
S/O LATE SRI. DESAI JAYASHIMHA RAO,
AGE: 50 YEARS, OCC: AGRICULTURIST,
R/O. HALVI VILLAGE, KOWTALAM MANDALAM,
ADONI TALUK, KURNOOL DISTRICT (A.P.),
RAICHUR (KARNATAKA).

10. SRI. DESAI ANAND
S/O LATE SRI. DESAI JAYASHIMHA RAO,
AGE: 48 YEARS, OCC: AGRICULTURIST AND PUROHIT,

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R/O. SRI. BHOOTARAJ TEMPLE IN
JAMAKHANDI ACHAR COMPOUND, SN PETE,
III CROSS, BALLARI (KARNATAKA).

11. SRI. DESAI PURUSHOTTAM
S/O LATE SRI. DESAI JAYASHIMHA RAO,
AGE: 46 YEARS, OCC: AGRICULTURIST,
R/O SRI. BHOOTARAJ TEMPLE IN
JAMAKHANDI ACHAR COMPOUND, SN PETE,
III CROSS, BALLARI (KARNATAKA).

12. SMT. VIJAYA LAKSHMI CD SHREEDHAR
D/O LATE SRI DESAI JAYASHIMHA RAO,
AGE: 44 YEARS, OCC: NIL,
R/O: "SUVARNA NILAYA",
RAGHAVENDRA COLONY,
BALLARI (KARNATAKA).
... RESPONDENTS
(BY SRI. V. SRIPAD AND
SRI. NAVEEN CHATRAD, ADVOCATES FOR R2 AND R3;
SRI. SHARAD V. MAGADUM, AGA FOR R4;
NOTICE TO R6 AND R7, R9 AND R12 IS DISPENSED WITH)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A
WRIT IN THE NATURE OF CERTIORARI AND QUASH THE
IMPUGNED ORDER DATED 07.11.2018 IN MISC. CASE
NO.39/2011 PASSED BY THE PRL. SR. CIVIL JUDGE AND CJM,
BALLARI VIDE ANNEXURE-A TO THE WRIT PETITION AS IT IS
ILLEGAL AND UNCONSTITUTIONAL AND ETC.,

THESE PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER
(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)
The writ petition in W.P. No.100011/2019 is filed by
the petitioners calling in question the order passed in Misc.
No.39/2011, whereby the learned Judge has allowed the
application filed under Order XXXIII Rule 1 of the Code of
Civil Procedure, 1908 (for short, ‘CPC’) and permitted the
respondents, who are the legal representatives of the
original applicant, to prosecute the proposed suit as
indigent persons.
2. The material facts leading to the present
petition are that one Smt. Padmavatamma instituted Misc.
No.39/2011 under Order XXXIII Rule 1 of CPC seeking
leave to institute a suit as an indigent person. During the
pendency of the miscellaneous proceedings and before the
application could be adjudicated, the said Padmavatamma
died. The present respondents, claiming to be her legal
representatives, were brought on record and sought to
continue the proceedings.

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3. The petitioners opposed the continuation of the
miscellaneous proceedings by the legal representatives. It
was specifically contended that, on the death of the
original applicant, the right to prosecute the proceedings
as an indigent person does not automatically enure to the
benefit of the legal representatives. According to the
petitioners, the legal representatives are required to
independently establish that they satisfy the requirements
prescribed under Order XXXIII Rule 1 of CPC and cannot
be permitted to prosecute the proposed suit without
payment of the requisite Court fee merely on the strength
of the indigent status claimed by the deceased applicant.
4. The learned Judge, on appreciation of the
evidence tendered by the substituted legal
representatives, proceeded to allow the miscellaneous
petition and granted them leave to prosecute the proposed
suit as indigent persons. A perusal of the evidence,
however, indicates that certain material admissions were

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elicited suggesting that the legal representatives
possessed independent sources of income.
Notwithstanding these admissions, the learned Judge
recorded no discussion as to their financial capacity and
mechanically extended the benefit of the indigent status
claimed by the original applicant to her legal
representatives.
5. Having bestowed anxious consideration to the
impugned order, this Court is of the view that the
approach adopted by the Court below cannot be sustained.
The order does not disclose whether the substituted legal
representatives had themselves sought permission to
prosecute the proposed suit as indigent persons by
pleading and establishing their own indigency or whether
they merely sought to continue the proceedings instituted
by the deceased applicant in their representative capacity.
The distinction assumes significance in view of Explanation

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III to Rule 1 of Order XXXIII of CPC, inserted by the
Amendment Act of 1976.
6. Explanation III makes it abundantly clear that
where an applicant dies during the pendency of an
application under Order XXXIII Rule 1 of CPC, the enquiry
thereafter has to be directed to the financial capacity of
the legal representatives in their representative capacity.
The relevant test is whether such legal representatives
possess sufficient means to pay the prescribed Court fee.
Consequently, the parameters indicated in Explanations I
and II to Rule 1 are equally required to be applied while
examining the claim of the legal representatives.
Therefore, the Court is under an obligation to
independently assess the economic condition and financial
status of the legal representatives before extending the
benefit of prosecuting the suit as indigent persons.
7. This Court finds considerable guidance in the
judgment of this Court in Smt. Lakshmi and Others v.

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1
Vijaya Bank , wherein, after an elaborate consideration
of the scheme of Order XXXIII of CPC and the earlier
binding precedents in Sri Ranga Vilas Motors (P) Ltd. v.
2
S.S. Krishna Sastry , Saraswatewwa v.
3
Shivarudrappa Channappa Kinnala , and the judgment
of the Hon’ble Supreme Court in Vijay Pratap Singh v.
4
Dukh Haran Nath Singh , this Court authoritatively held
that an application presented under Order XXXIII Rule 1
CPC is in the nature of a plaint and, once presented, the
suit is deemed to have been instituted on the date of
presentation of such application. Consequently, the death
of the applicant before adjudication of the question of
indigency does not result in the abatement of the
proceedings, since the substantive right to sue survives to
the legal representatives. At the same time, the privilege

1

AIR 2011 Kar 89 ,
2

AIR 1962 Mys 47 ,
3

AIR 1981 Kar 8 ,
4

AIR 1962 SC 941

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of prosecuting the suit as an indigent person is a personal
statutory concession and does not automatically devolve
upon the legal representatives merely because they have
stepped into the shoes of the deceased applicant. The
legal representatives are entitled to continue the
proceedings only after they are brought on record under
Order XXII CPC, but they must thereafter either pay the
requisite Court fee or independently establish, on the basis
of specific pleadings and acceptable evidence, that they
themselves satisfy the requirements of an indigent person
as contemplated under Order XXXIII Rule 1 CPC read with
Explanation III.
8. The enquiry, therefore, shifts from the financial
condition of the deceased applicant to the economic status
and means of the substituted legal representatives, and
the Court is under a statutory obligation to conduct an
independent enquiry into their financial capacity before
extending the benefit of prosecuting the suit without

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payment of Court fee. The judgment further clarifies that if
indigency is ultimately not established, the Court is
required to grant reasonable time to the legal
representatives to pay the requisite court fee, with liberty
to invoke Section 149 CPC, and only upon failure to
comply can the consequences contemplated under Order
VII Rule 11(c) CPC follow. Applying these well-settled
principles to the case on hand, this Court finds that the
Court below has completely misdirected itself in law. The
impugned order does not indicate that the substituted
legal representatives had laid any independent factual
foundation asserting their own indigency, nor does it
reveal that the Court undertook the mandatory enquiry
into their income, assets and financial resources as
required under Explanation III to Rule 1 of Order XXXIII
CPC. Though the evidence on record discloses material
admissions indicating that the legal representatives
possessed independent sources of income, the learned
Judge has neither adverted to those admissions nor

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recorded any finding as to whether they lacked sufficient
means to pay the prescribed Court fee. The order proceeds
as though the indigent status claimed by the deceased
applicant automatically enures to the benefit of her legal
representatives, an approach which is directly contrary to
the law declared by this Court in Lakshmi (supra). The
impugned order, being bereft of any discussion on the
statutory requirements governing the entitlement of the
legal representatives to prosecute the suit as indigent
persons, suffers from patent non-application of mind and
cannot be sustained. The matter, therefore, necessarily
warrants remand to enable the Trial Court to hold a fresh
enquiry strictly in accordance with the principles
enunciated in Lakshmi (supra) and the statutory mandate
contained in Order XXXIII Rule 1 CPC.
9. This Court has consistently held that where an
applicant seeking permission to sue as an indigent person
dies before adjudication of the application, the enquiry

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does not come to an end. However, the continuation of
such proceedings by the legal representatives is subject to
their independently establishing that they satisfy the
statutory requirements of indigency. It is their financial
condition and not that of the deceased applicant which
becomes relevant. Equally, the legal representatives are
under an obligation to make a complete and candid
disclosure of their assets, income and financial resources,
and any suppression or failure to make a full disclosure
would be fatal to the claim for leave under Order XXXIII
Rule 1 of CPC.
10. In the present case, the Court below has failed
to advert to these settled principles. The impugned order
does not record any finding that the substituted legal
representatives had specifically pleaded their indigency or
that they had established, by acceptable evidence, that
they lacked sufficient means to pay the requisite Court
fee. There is no discussion regarding their financial status,

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income or assets. The order is conspicuously silent on the
statutory requirements engrafted under Explanation III to
Rule 1 of Order XXXIII of CPC. The reasons assigned are
wholly cryptic and do not disclose any judicial application
of mind to the material placed on record.
11. In the considered opinion of this Court, leave to
prosecute the proposed suit as indigent persons could not
have been granted in the absence of specific pleadings and
satisfactory evidence establishing the indigency of the
legal representatives. Since the enquiry mandated under
Order XXXIII Rule 1 of CPC has not been properly
undertaken, the impugned order cannot be sustained and
is liable to be set aside. The matter, therefore, requires to
be remitted to the Court below for a fresh enquiry confined
to the question whether the substituted legal
representatives satisfy the requirements of indigency as
contemplated under Explanation III to Rule 1 of Order
XXXIII of CPC.

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12. For the reasons stated above, this Court
proceeds to pass the following:
ORDER
(i) The writ petition in W.P. No.100011/2019 is
allowed .
(ii) The order dated 07.11.2018 passed in Misc.
No.39/2011 is hereby quashed and set aside.
(iii) The matter is remitted to the Court below for
fresh consideration. The learned Judge shall hold a
detailed enquiry regarding the indigency of the
substituted legal representatives of the original
applicant, strictly in accordance with Order XXXIII
Rule 1 of CPC, particularly Explanation III thereto,
after affording reasonable opportunity to both
parties.
(iv) The Court below shall examine whether the legal
representatives have specifically pleaded and

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established their own indigency by placing material
regarding their income, assets and financial
resources, and thereafter pass a reasoned order in
accordance with law.
(v) In view of the order passed by this Court in W.P.
No.100011/2019, the relief sought in W.P.
No.104337/2021 for quashing the proceedings in
O.S. No.245/2018 does not survive for consideration.
Accordingly, W.P. No.104337/2021 stands
dismissed as having become infructuous.

Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE


ALB
CT:BCK
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