MURUKESAN Vs. DISTRICT COLLECTOR ERNAKULAM

JUDGEMENT

(1.) In this writ petition the challenge is directed against Ext. P3 demand prior to attachment of land dated 30-4-1979 under S.34 of the Kerala Revenue Recovery Act issued by the authorised officer (Deputy Tahsildar, Revenue Recovery. Alwaye) for recovery of Rs. 1145/- being the arrears of court fees alleged to be due from the petitioner, and Ext P5 order dated 29-10-1979 passed by the respondent, the District Collector, Ernakulam, whereby he disposed of Ext P4 objection submitted by the petitioner to Ext. P3 demand notice, permitting the petitioner to remit the arrears at the rate of Rs. 50/- per month.

(2.) The petitioner had instituted O. S No. 282 of 1976 on the file of the Subordinate Judge, Ernakulam, against the driver of the scooter KLD. 7644 informa pauperis for recovery of compensation in the sum of Rs 11,650/- for the injuries sustained and the medical expenses incurred by him as a result of the accident involving the said scooter on 4-1-1973. Ultimately the 3rd Additional Subordinate Judge, Ernakulam, in terms of the finding under issue No. 6 granted a decree for Rs 768.88 as per the judgment dated 30-1-1979, a true copy of which is Ext. P1. The operative portion of the decree, a true copy of which is Ext. P2, reads as follows:

(3.) Sri. M. M. Abdul Aziz, the counsel for the petitioner, submitted that the Revenue Recovery proceedings initiated by the respondent are clearly illegal and are liable to be quashed His submission is that O.33, R.10 CPC, in terms would apply only to a case where the plaintiff succeeds. In the present case it cannot be said that the indigent person succeeded in the suit inasmuch as he succeeded only partly and lost substantially, because as against a claim for Rs. 11,650/- what was decreed was only a paltry sum of Rs. 768.88; and if he were to pay a sum of Rs. 1145/- by way of court fees, he would be a loser in the bargain. It is also his submission that in Exts. P1 and P2, judgment and decree, there was no order directing the petitioner (plaintiff) to pay court fees. This not being a case where the plaintiff failed in the suit or was dispaupered or where the suit was withdrawn or dismissed, the provisions of O.33, R.11 CPC are not attracted. Evidently R.11A has no application to the facts of the case inasmuch as the suit did not abate.