RANGASWAMI NAIDU Vs. ANGUSAMI NAIDU

JUDGEMENT

(1.) THIS revision petition is filed at the instance of the decree-holder in a mortgage suit against the order of the Subordinate Judge of Coim-batore in E. A. No. 426 of 1956. That was an application for the issue of a cheque by the petitioner-decreeholder. The petitioner obtained a mortgage from the first respondent and he filed o. S. No. 27, of 1953 on the file of the Sub Court, Coimbatore, for a decree for the sale of the mortgage properties. A preliminary decree was passed on 6-4-1953 and the final decree was passed on 15-6-1954. In execution of the final decree the mortgage properties were brought to sale and a sum of Rs. 4,041-5-0 was put into court representing the proceeds of sale, the decree-holder, thereafter filed E. A. No. 426 of 1955, an application for the withdrawal of the amount. The auction purchaser filed a memorandum into Court stating that as the Government wag taking proceedings to bring to sale the properties in execution of a decree in their favour for Court-fee in another suit it was necessary that the dues to the Government should be paid out of the amount in Court deposit. Notice was given to the Government Pleader who supported the case of the auction purchaser and claimed that the Court-fee due to the government should he paid out of the amount in Court deposit. Before proceeding further it is necessary to state the circumstances under which the Government became entitled to recover Court-fee from the first-respondent. The wife and children of the first respondent filed a suit in forma pauperis in O. S. No. 357 of 1949 for partition and separate possession of the family properties including the mortgaged properties. A decree was passed in their favour and the court-fee the to the Government was made payable and was also made a charge on the properties in that suit. The learned Subordinate Judge held that as in the partition suit the entire properties were charged for the Court-fee and as the mortgagee did not make the Government a party to the mortgage suit the latter would be entitled to be paid out of the Kale proceeds in Court deposit in the mortgage decree the amount representing the Court-fee due to them. The decree-holder has filed the above civil revision petition against the order of the learned subordinate Judge. Order 33, R. 10, C. P. C. states.

(2.) I am therefore of opinion that the judgment of the learned Subordinate Judge cannot be sustained and that the petitioner would be entitled to payment out of the amount realised in execution of his mortgage decree. The civil revision petition is, therefore, allowed, with costs against the seventh respon dent.