SECRETARY OF STATE Vs. THAYAMMAL

JUDGEMENT

(1.) This is an application by the Secretary of State for India in Council through the Collector of Madura for an order directing the appellants in Appeal No. 146 of 1934 to furnish security for payment of court-fees due by them to the Government in the lower Court and in this Court. Admittedly, this is an unusual application. The application purports to be made Under Order 33, Rule 13, Civil P.C., which certainly does not refer to the question of taking security from appellants. It merely provides that: All matters arising between the Government and any party to the suit Under Rule 10, Rule 11 or Rule 12 shall be deemed to be questions arising between the parties to the suit within the meaning of Section 47.

(2.) No question has now arisen in this Court about court-fee, and I fail to see how the Government can come in at this stage in the present appeal with an application like this. This appeal was permitted to be filed in forma pauperis. That was the occasion when, no doubt, the Government could appear and oppose the application if they thought fit. After the application has been allowed and the appeal has been admitted, and only awaiting hearing, there is no scope in my opinion for any intervention by the Government in the matter of court-fee, and no reason why the provisions of Order 41, Rule 10, which are meant for the protection of the respondents in an appeal, should be utilised or made available for the benefit of the Government in order to enable it to collect the court-fee which is due. Order 41, Rule 10 is not a provision intended to assist the Government in collecting court-fee. It is meant for the protection of respondents in appeal and to save them from the risk of loss in the shape of costs. The court-fee that is due to Government cannot be regarded as the costs incurred by Government either in the Court below or in this Court. Government is not a party in this appeal nor was it a party in the Court below, and even if court-fee is directed to be paid to the Government, that does not convert the court-fee into costs incurred by a party. I am of opinion that this application is misconceived and incompetent.

(3.) Even on the merits I can see very little to justify the application. This is a case in which apparently and ostensibly in the interests of justice a pauper has been permitted to appeal in forma pauperis. It is therefore necessary to see that no encouragement is given to any attempt to stifle the appeal, and it is almost certain that if the prayer in the present application is granted, the appellants would be unable to find security for such a large sum as Rs. 4,500 and the result would be a summary rejection of the appeal. This result would not only be disastrous from the point of view of doing justice between the parties to the appeal, but disastrous or at least imprudent even from the point of view of the Government revenue. Any chance which the Government may have of recovering the court-fee due would be lost if the appeal is rejected as it will have to be rejected for failure to give security. I am therefore unable to see any good reason on the merits for granting the application, even if the application was maintainable. The application is accordingly dismissed with costs.