(1) The facts leading up to this appeal shortly stated are as follows:
The father of the plaintiff one N. Udipi had brought a Special Suit No. 95/1934 in the Court of the Civil Judge, Senior Division, Dharwar, for a declaration that his son Shankar was the adopted son of one D. Patel and for partition and allotment of his share in the properties of the said D. Patel. The suit was instituted against the relations of the said D. Patel. This suit was brought in forma pauperis. On 26-12-1936 the suit was dismissed and the said N. Udipi who acted as next friend on behalf of his minor son Shankar was ordered to pay Court-fees amounting to Rs. 1,732/-. Against that order an appeal was taken to the High Court of Bombay.
That appeal was also filed in forma pauperis. On 17-1-1938 the said appeal was dismissed and the next friend was ordered to pay the Court-fees payable in the appeal amounting to Rs. 1,716-8-0. The total amount which the next friend had to pay under the orders of the trial Court and of the appellate Court as Court-fee amounted to Rs. 3,448-8-0. In the year 1942 the Government gave a special Darkhast No. 112 for the said amount of Court-fees. During the pendency of the Darkhast the next friend died on 17th January 1944.
On 24th July 1944 the said Darkhast was dismissed for want of prosecution. Nothing else was done by the Government since then until the year 1951 when it tried to recover the amount of the Court-fees ordered to be paid by the next friend by revenue process treating the said amount as arrears of land revenue. The Government put the land of the next friend in the hands of his son, the present plaintiff, to sale. Thereupon on 19th June 1952 this suit was brought by the present plaintiff for a declaration that the said action of the Government was illegal, and for an injunction restraining the Government from proceeding with the said sale.
One of the pleas urged by he plaintiff was that the Government's claim to recover the said amount was barred by Art. 182 of the Limitation Act and also by Section 48 of the Civil Procedure Code.
(2) The plea of the Government as put forth in its written statement was that it had two remedies, i.e. execution and revenue process, any one of which it can put into operation for recovering the amount of Court-fees ordered to be paid.
(3) The trial Court took the view that Art. 182 did not apply to the facts of this case but Section 48 of the Code of Civil Procedure applied and as the application to recover the amount was made after 12 years from the date of the orders in question, the same was barred under the said section. Against that decision an appeal was taken to the District Judge who agreed with the trial Judge that it was barred under Section 48 and dismissed the appeal. Hence the present appeal.
(4) Before us it was contended on behalf of the Appellant that O. 33, R. 14 of the Civil Procedure Code entitles the Collector in such cases, where an order has been made for payment of the Court-fees, to recover the amount so ordered from the person or property liable for the payment as if it were an rarer of land revenue. The said rule, according to the learned Government Pleader appearing for the Appellant, shows that the Collector can recover the said amount by the modes prescribed by the Land Revenue Code.
He further contended that there was no bar of limitation in recovering the said amount by the said method. That being so, the learned Advocate urged that the lower appellate Court was wrong in holding that the right of the Collector to recover the said amount as arrears of land revenue was barred.
(5) As against the said contention of the learned Government Pleader for the Appellant, Mr. T. Krishna Rao who was requested by the Court to argue the Respondent's view as amicus curiae, the Respondent not appearing in this appeal, contended before us that the decree itself being unenforceable by execution because of the provisions of Section 48 of the Civil Procedure Code, the said decree ahs ceased to be enforceable as a decree and in such a case no question of enforcing the said decree as arrears of land revenue arises.
The question raised is not doubt not free from difficulty. But having regard to the fact that this appeal can be disposed of on another ground urged before us by Mr. T. Krishna Rao, it would not be necessary for us to express any opinion with regard to the same.
(6) Mr. T. Krishna Rao further urged in support of the Respondent's case that O. 33, R. 14 would not apply to the present case. He referred us to the provisions of Rr. 10, 11 and 11A of O. 33 of the Civil procedure Code and contended that under those rules no order against the next friend for payment of the Court-fees could be made. He urged that such an order can be made only under Section 35 of the Code of Civil Procedure. If then, he contended, such an order cannot be made under Rr. 10, 11 and 11A of O. 33 of the Code, then R. 14 of O. 33 would not apply to the said order.
(7) In order to appreciate this contention it would be necessary to refer to the provisions of Rr. 10, 11 and 11A of O. 33 of the Code of Civil Procedure, Rule 10 provides as follows :
'Where the plaintiff succeeds in the suit, the Court shall calculate the amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper; such amount shall be recoverable by the State Government from any party ordered by the decree to pay the same, and shall be a first charge on the subject matter of the suit'.
Rule 11 provides as follows :
'Where the plaintiff fails in the suit or is dispaupered, or where the suit, is withdrawn or dismissed,-
(a) because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service, or
(b) because the plaintiff does not appear when the suit is called on for hearing,
the Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper.'
Rule 14 reads as follows:
'Where an order is made under R. 10, R. 11 or R. 11A, the court shall forthwith cause a copy of the decree or order to be forwarded to the Collector who may, without prejudice to any other mode of recovery, recover the amount of court-fees specified therein from the person or property liable for the payment as if it were in arrear of land revenue.'
(8) It would appear on a perusal of these rules that R. 10 and R. 11A would not apply to the present case; this not being a case where the pauper plaintiff has succeeded nor being a case where the suit has abated by reason of the death of the plaintiff. This is a case where the pauper plaintiff has failed in the suit and, therefore, an order under R. 11 for the payment of the Court-fees could be made. But the said order under the said rule can only be made against a plaintiff or any person added as a co-plaintiff to the suit.
The rule itself expressly provides that the Court shall order 'the plaintiff or any person added as a co-plaintiff' to pay the Court-fees which would permitted to sue as a pauper. The rule, therefore, in my opinion is quite explicit and it empowers the Court to make an order only against a plaintiff or only against a co-plaintiff to pay the Court-fees. The question which next arises is, whether or not under this rule an order for such payment of Court-fees can be made against the next friend of the plaintiff.
(9) The rule, in my opinion, does not empower the Court to make such an order. Such an order in my opinion, can be made only under Section 35 of the Code of Civil Procedure which gives wide powers to the Court to make an order for costs against anybody who in its opinion, should be made liable for such costs. Section 35 provides that subject to such conditions and limitations as may be prescribed, and to be provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid and to give all necessary directions for the purpose aforesaid.
It is not disposed before us that an order for payment of Court-fees is an order for payment of costs. That has been the view taken in Elumalal Naicher v. Kuppammal, ILR 53 Mad 716: (AIR 1931 Mad 249), and no decision could be cited which took a contrary view on this point. On principle also I am in agreement with the view taken in the said case that an order for payment of Court-fees can be said to be an order for costs in the suit. Under Section 35 of the Code, to which I have just now referred, an order for costs can be made against anybody including the next friend of the minor plaintiff.
Under that section, therefore, an order for payment of Court-fees can be made against the next friend. But such an order cannot be made under O. 33, R. 11 C. P. C. which only empowers the Court to make an order against the plaintiff and co-plaintiff for payment of the court-fees.
(10) If then this order cannot be said to be an order made under R. 10, or R. 11 or R. 11A of O. 33, then the provisions of R. 14 of the said Order would not apply. I have already indicated that R. 14 provides that an order made under R. 10, 11 or 11A can be enforced by the Collector for the realization of the amounts specified therein as by the method by which the arrears of land revenue are recovered as if it were an arrear of land revenue. But if an order is not an made under R. 10, 11 or 11A of O. 33, then the Collector has no power under R. 14 of O. 33 to recover the amount specified therein from the person liable thereto as if it were an arrear of land revenue.
In other words, R. 14 would be attracted only to orders made under R. 10, R. 11 or R. 11A of O. 33 of the Code and would not be attracted to an order made under Section 35 of the Civil procedure Code. That being so, the Government cannot enforce the order for payment of Court-fees by taking recourse to revenue processes.
(11) In my opinion, the decision of the lower appellate Court, although on a different ground, has to be sustained. The result, therefore, is that this appeal fails and is dismissed.
(12) This Court is thankful for the assistance which it has received from Mr. T. Krishna Rao who has argued the Respondent's case point of view as amicus curiae.
(13) I agree.
(14) Appeal dismissed.