P M PATHROSE Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner and second respondent had executed an agreement for the contract work of construction of 40 beded paediatric ward in Government Hospital, Perumbavoor. When the full amount was not paid, petitioner filed O.S. Nos. 612/92 and the decree is Ext. P1(a) which is as follows :"

(2.) Under Order 33 , Rule 10 of C.P.C. it is provided as follows :"

(3.) Defendant in the suit being the State, can deduct the Court fee payable and appropriate it towards the same and balance need be paid to the plaintiff. When that is done, plaintiff's obligation to pay Court fee is over as the State has appropriated the Court fee payable from the decreed amount. When suit is decreed with cost, Government is entitled to a precedence in respect of Court fees and plaintiff is entitled only the balance. But, if Court fee has already been deposited by the State in pursuance of the decree or it was realised by the plaintiff in execution proceedings, it is for the State to recover that from that amount already deposited as it is the first charge on the decreed amount. State has not filed a counter affidavit to show that the decreed amount including Court fee was already deposited in Court or was realised by the petitioner . Therefore, the original petition is allowed without prejudice to the right of the State Government in recovering the same as provided under Order 33, Rule 10 of C.P.C.Petition allowed.