P GOPALAKRISHNA NAIDU Vs. STATE OF MADRAS

JUDGEMENT

(1.) THIS is an appeal from an order of Kunhamed Kutti J. agreeing with the Master that the State was entitled to payment out of court-fee out of the sum lying to the credit of C. S. 84 of 1952. That was a suit instituted by the second and third respondents to enforce a mortgage which had been executed by the appellant. In execution of the mortgage decree, a sum of Rs. 56,000 was realised, and after appropriating the amount towards discharge of the decree, there remained a balance of Rs. 3,979. The appellant's son instituted O. S. No. 1973 of 1956 on the file of the City Civil Court, Madras, for setting aside the mortgage decree and for partition and separate possession of half share in the hypotheca. This suit was decreed on 11-12-1957. That suit has been allowed to be instituted in forma pauperis. On 19-1-1961, the appellant's son died. Thereafter, the appellant, by appln. No. 1253 of 1964, applied for withdrawal of the amount which stood to the credit of C. S. 84 of 1952. The Master directed that a sum of Rupees 1489-59 be paid to the appellant and that the court should retain a similar sum of Rs. 148958. He further directed that a period of three months from the date of his order, that is, till 1st March 1965, be allowed for a suitable application to be filed on behalf of the State, and if such an application was filed, the amount should be paid out to the State if it established satisfactorily the claim towards court-fee, but if no such application was filed or if the State failed to establish its claim the amount by way of court fee, the appellant should be entitled to payment out of the sum. Then followed Appln. No. 863 of 1965 filed by the State for payment out. That application was resisted by the appellant on the ground that it was barred by limitation. It was contended for him that since the State failed to keep alive the decree in O. S. 1973 of 1956, which was dated 11th December 1957, and the application of the State was made only on 28th December 1964, the State was not entitled to seek payment out and that too by an application. This contention was not accepted either by the Master or by Kunhamed Kutti J.

(2.) BEFORE us the same contention was reiterated for the appellant. It was urged that Order XXXIII, C. P. Code does not provide for an application for payment out of court-fee out of funds remaining to the credit of a suit more especially a suit, other than the one in which the court fee became payable to the State, and that its proper remedy was either to execute the decree in O. S. 1973 of 1965 or to proceed under Order XXXIII Rule 14 C. P. Code. In any case, it is said, the application, even if it lay, was barred by time, as it would be governed by Article 181 of the Limitation Act. 1908.

(3.) IT is true that none of the provisions of Order XXXIII of the Code enables the state to file an application for payment out of the court fee. Rule 12 (1) of Order xxxiii, which has been relied on by the State, contemplates by its very language an application to the court for making an order for payment of Court fee under rule 10, Rule 11 or Rule 11-A. This provision can be invoked by the State only where the court had failed earlier to make an order under Rule 10 of the Order xxxiii. With reference to sub-rule (2) of Rule 12, it was said that this threw light upon the scope of sub-rule (1) of Rule 12 and made it clear that an application by the State for payment out of the court fee from a sum lying to the credit of any suit was permissible. But sub-rule (2) of Rule 12 is intended for a different purpose. Where a sum of money stands to the credit of any suit which has been instituted in forma pauperis no application for payment of money thereout shall be ordered except after notice to the Government Pleader on behalf of the State. This is merely to safeguard the interests of the State to enable it to apply by way of an application for payment out of the sum. Also it may be noted that the application contemplated under sub-rule (2) of Rule 12 is one in the suit which has been instituted in forma pauperis. Rule 14 only provides for a special remedy for the State, namely, that the State can recover the court-fee due from a person or property liable for payment as if it were an arrear of land revenue. But this remedy is without prejudice to any other remedy. It cannot, therefore, be said that merely because the State could recover under the provisions of the Revenue Recovery Act, therefore, it had no right to apply by an application for payment out. Nor for that same reason can it be said that if the Revenue Recovery Act is not resorted to, the only other available mode of recovery is by executing the decree. As a matter of fact, though under Rule 10 of Order XXXIII, the court is required to calculate the amount of court fees which the pauper plaintiff would have to pay if he had not been permitted to sue in forma pauperis, and the decree may order the party liable to pay the court fee, the State itself is not a party to the decree. All that Rule 13 of Order XXXIII says is that all matters arising between the State Government and any party to the suit under Rule 10, Rule 11, Rule 11-A or Rule 12 shall be deemed to be questions arising between the parties to the suit within the meaning of Section 47. In any case, in our view, the mode of recovery by the State of court-fee is not confined either to the Revenue Recovery Act or the execution of the decree.