LAWS(ALL)-1953-11-16

ALI HAIDER Vs. SAKINA BEGUM

Decided On November 04, 1953
ALI HAIDER Appellant
V/S
SAKINA BEGUM Respondents

JUDGEMENT

(1.) THIS is a miscellaneous appeal arising out of proceedings under Section 47 of the Civil procedure Code.

(2.) A suit was instituted by Srimati Sakina Begam, respondent No. 1, against the appellant and respondents Nos. 2 to 12 for a declaration, of her share in certain properties and for possession thereof on the allegations that she had inherited a share in the property which originally belonged to Yusuf Ali. The suit was contested only by the appellant, who was defendant No. 2, on various grounds. One of the grounds raised was that the court-fee paid by the plaintiff was insufficient. The Court framed an issue on this point and came to the conclusion that the court-fee paid by the plaintiff was insufficient and ordered the plaintiff to pay a further sum of Rs. 3,820/4/- as court-fee. The plaintiff found that she was unable to pay the court-fee and she, therefore, made an application for permission to sue in 'forma pauperis'. This application was pending when it appears that the parties came to terms and the plaintiff agreed to get her suit as also the application for permission to sue as a pauper dismissed on certain conditions. A petition for compromise was then filed in Court and it was mentioned in this application that the suit, as also the application No. 29 of 1946 be consigned to records, and that the plaintiff had agreed to get her suit consigned to records in lieu of the defendant No. 2 agreeing to pay her Rs. 130/- per mensem as maintenance. It was also mentioned in the petition for compromise that if defendant no. 2 defaulted in the payment of maintenance for three months at a time, the plaintiff shall have the right to get her suit restored and reheard.

(3.) THE Civil Judge pointed out to the parties that the condition that the suit might be restored under certain circumstances was not acceptable to the Court and a decree for this prayer could not be made. The Court then ordered the suit and the miscellaneous application No. 29 of 1946 to be dismissed in terms of the compromise. After the above order had been passed it was pointed out to the lower Court by the Government Pleader that no order for payment of court-fee had been passed and that an order should be passed under Order XXXIII, Rule 10 of the Code of civil Procedure. The Court then ordered as follows" the court-fees should be paid by the defendant No. 2 and can be realised from the plaintiff also under Order XXXIII, Rule 10, Civil P. C. The Collector may be informed. The Government pleader Mr. B. N. Roy is present and informed. "