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Ganpatputaya Vs. the Collector of Kanara - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1877)ILR1Bom7
AppellantGanpatputaya
RespondentThe Collector of Kanara
Excerpt:
the code of civil procedure, section 309 - attachment--court fees--prerogative of the crown. - - this rule of interpretation is well established, and applies not only to the statutes passed by the british, but also to the acts of the indian legislature framed with constant reference to the rules recognized in england......has a right to receive certain fees at the institution of every suit; it temporarily forgoes its right in the case of pauper plaintiffs, and places means in their hands to proceed to judgment against their defendants. it is, therefore, reasonable--supposing always that it is reasonable to levy court fees at all--that the crown, in consideration of its giving up its right to those fees, should have, for their defrayal, the first claim on the proceeds of the pauper suit. without the forbearance of the government to insist on its ordinary rule, the suit, in such a case, could not have been brought or the money realized. as the government pleader urged at the bar, if this precedence be not allowed to the crown, the issue of prohibitory notices under section 236 of the code of civil.....
Judgment:

West, J.

1. The decision of this case turns upon the construction of Section 309 of the Code of Civil Procedure. Its direction that the amount of fees, which would have been paid by the pauper plaintiff, shall, on decision of the suit, be recoverable by Government from any party ordered by the decree to pay the same in the same manner as costs of suit are recoverable, does not preclude the Crown or its representative from urging its prerogative and insisting upon its right to precedence. The circumstance of its being placed in the position of judgment-creditor does not reduce its rights of necessity to those of a private judgment-creditor in case of a contest as to prior satisfaction out of moneys realized in execution. It is a universal rule that prerogative and the advantages it affords cannot be taken away except by the consent of the Crown embodied in a Statute. This rule of interpretation is well established, and applies not only to the Statutes passed by the British, but also to the Acts of the Indian Legislature framed with constant reference to the rules recognized in England. And the rule, as applied to the present case, is not an unreasonable one. The Crown has a right to receive certain fees at the institution of every suit; it temporarily forgoes its right in the case of pauper plaintiffs, and places means in their hands to proceed to judgment against their defendants. It is, therefore, reasonable--supposing always that it is reasonable to levy Court fees at all--that the Crown, in consideration of its giving up its right to those fees, should have, for their defrayal, the first claim on the proceeds of the pauper suit. Without the forbearance of the Government to insist on its ordinary rule, the suit, in such a case, could not have been brought or the money realized. As the Government Pleader urged at the bar, if this precedence be not allowed to the Crown, the issue of prohibitory notices under Section 236 of the Code of Civil Procedure, instead of furthering justice, would, in many cases, defeat it by defeating the Government's claim for costs altogether.

2. This being our opinion on the point, it is unnecessary to discuss the other points raised in argument, and we must confirm the decree of the lower Court with costs.


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