STATE OF BIHAR Vs. SHEO KUMAR SINHA

JUDGEMENT

(1.) THIS appeal is directed against an order passed by the First Additional Subordinate Judge, Arrah dated the 13th August, 1966 in a Miscellaneous case numbered as 3 of 1965 filed by the judgment -debtor respondent under Section 47 of the Code of Civil Procedure. There were two objections raised before the learned Additional Subordinate Judge, one of which was to the effect that the decree was not maintainable in view of its vagueness and the second objection was that the Execution (rase No. 4/26 of 1963/66 pending in the court was barred by limitation. As regards the first point the finding of the learned Additional Subordinate Judge was to the effect that the decree was not executable on account of its vagueness and it could not he executed unless there was an amendment of the decree. With regard to the second objection, the learned additional Subordinate Judge was of opinion that the execution was not barred by limitation. In view of the decision on the first point, he allowed the miscellaneous case and dismissed the execution case as not maintainable in view of the vagueness in the decree.

(2.) THE State of Bihar who was the decree holder in the case being aggrieved and dissatisfied with this order has preferred this present appeal contending that the execution cape should not have been held to be not maintainable or non executable on account of its vagueness. The learned Counsel for the judgment -debtor respondent has contended, on the other hand that the decision of the learned Additional Subordinate Judge in this respect was correct, but it has also been submitted that the learned Additional Subordinate Judge was not correct in his finding that the execution case was not barred by limitation and that he ought to have held that the execution case was also barred by limitation. Sheo Kumar Sinha who is the sole judgment debtor respondent in this appeal filed a title suit in forma pauperis for a declaration that the alienations made by defendant No. 1 of that suit in respect of the joint family property were not binding upon the plaintiff and he was entitled to recover possession thereof. The suit was dismissed with costs and pleader's fee against the contesting defendants, but was decreed without costs against the non -contesting defendants on 24 -8 -1957. There was also an order to the effect that a copy of the decree be sent to the Collector, Shahabad for realisation of the court -fee from the plaintiff which was payable by him, had he not been allowed to sue as a pauper. A copy of the decree, therefore, was forwarded to the Collector in due course for the realisation of the court -fee from the plaintiff. Admittedly, this decree does not show what amount of court fee was to be realised from the plaintiff. The operative portion of the decree with regard to the realisation of the court -fees by the State Government was as follows:

(3.) THERE was also an extract of the plaint in the certified copy of the decree and there was a recital to the effect that the valuation of the suit was Rs. 1,07,572/ -and the court -fee payable on this amount was Rs. 3021/10/ -. It may be also mentioned here that as usual there was an account appended to the decree showing the costs of the respective parties incurred in the suit and as regards the item of stamp for plaint, that is, the court -fee on the plaint, it was blank showing that the office had not made any calculation as to what was the actual court -fee payable on the plaint. The State of Bihar filed the execution petition and column No. 7 of the execution petition where the amount of the decree has to be entered was blank, but in column No. 8 where the amount of the costs has to be entered it was noted Rs. 3066/13/ - equivalent to Rs. 3066.81 P. I may in this connection refer to the provisions of Order 33, Rule 8, of the Code of Civil Procedure which lays down that when the application for permission to sue in forma pauperis is granted, then the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any Court fee (other than fees payable for service of process) in respect of any petition, appointment of a pleader or other proceeding connected with the suit. This means that a calculation has to be made with regard to such court -fee which was payable by the plaintiff on such petitions etc. There was no such calculation in the decree showing as to how much of money was payable in this respect towards such court -fee by the plaintiff.