1. These petitions relate to a suit in which the District Munsif of Calicut made a preliminary decree for the administration of the estate of one Rama Pattar on a creditor's plaint. After that preliminary decree was made, two other creditors put in claims against Rama Pattar's estate. The District Munsif has ordered that on those claims they must pay ad valorem Court-fee as if they were plaints. These revision petitions are against those orders.
2. It will he noticed that we are not concerned here with the question what Court-fee should be paid by a creditor who institutes an administration suit. The question is what Court-fee, if any, should be paid by another creditor who comes in with a claim after a preliminary decree for administration has been made in such a suit. The learned Government Pleader has admitted that there is no explicit provision in the Court Fees Act requiring any Court-fee to be paid on such a claim. But he has suggested that we should treat such claims as plaints for the purpose of the Court Fees Act. Except throwing out that suggestion he has not shown us, in my opinion, any good reason why we should extend the definition of the word 'plaint' in that way. But his more serious argument is that such a1 creditor's suit for administration is really a suit for an account, the plaintiff-creditor representing in it all the other creditors, who, being so represented, are in effect parties to the suit from the outset. His view of the suit is that the plaintiff-creditor may fix his own valuation and Court-fee in the first instance, but that, before any further amount than that on which he has paid the Court-fee can be recovered by any creditor, additional Court-fee must be paid--in some such way as it is required to be paid in other suits for accounts by Section 11 of the Court Fees Act. In a sense a creditor's suit for administration is a suit for an account; but the analogy between it and an ordinary suit for an account will not in my opinion carry us far enough. First, it must be noticed that in an ordinary suit for an account, if a larger amount is found due to the plaintiff when the account is taken than that on which he has paid Court-fee, Section 11 of the Court Fees Act provides that he cannot execute his decree for the larger amount without paying additional Court-fee on it. That is not exactly what the learned Government Pleader is contending for in this instance. Here it is contended that the creditors other than the plaintiff-creditor must pay additional Court-fees at an earlier stage, not when they are executing any decree or order which they may eventually obtain in the suit, but when they put in their claims. And does a plaintiff-creditor in such an administration suit really represent all the other creditors? In one sense his suit is a suit for the benefit of all the creditors of the estate. But I think it is clear that the other creditors cannot be held to be represented by him in the sense that they are in effect parties to the suit from the outset. It is clear I think that, if during the pendency of the suit, before a preliminary decree for administration is made, a claim of one of the other creditors becomes barred by time, it is gone it cannot be enforced in the administration suit. That could not be if the other creditor had been represented by the plaintiff-creditor and was in effect a party to the suit from the start. On that subject it is useful to compare In re Greaves, Deceased. Bray v. Tofield (1881) 18 Ch.D. 551, which explains the English law on the subject; and I see no reason to suppose that the position in this country is different in that respect. Then it must be noticed that, before the preliminary decree for administration is made, if the person who represents the estate of the deceased pays off the plaintiff-creditor's claim the suit will be dismissed, although none of the other creditors has been satisfied at all. That too shows that the plaintiff-creditor does not effectively represent all the other creditors so as to make his suit a suit for an account on behalf of all, which is really what the learned Government Pleader contends for. We must also remember that in an administration suit the Court takes control of the estate and distributes it among the creditors, and it is no part of the duty of the Court to do that in an ordinary suit for an account. When we examine the matter in that way, it will be seen what a short distance the analogy of a suit for an account takes us in this matter. But, even if it went much further, could analogy help us? The learned District Munsif has relied on some remarks in Shashi Bhushan Bose v. Manindra Chandra Nandy I.L.R. (1916) 44 C. 890 on the subject. In that case the learned Judges said:
When, after the preliminary decree has been made and creditors have been invited to establish their claims, if any, against the debtor, each creditor, who puts forward a claim not already transformed into a judgment debt, may well be required to pay Court-fees ad valorem on his application, as if it were a plaint in a suit for the recovery of the sum he claims. Such a procedure can be sustained on the analogy of Section 11 of the Court Fees Act.
3. In regard to that it must first be noticed that what the learned judges said was only obiter dictum and in no way necessary for the decision of the case before them. And apart from that with very great respect I may say that I do not understand how any fiscal statute can be applied by analogy. When the State requires the subject to pay a tax of any kind, that must be done by definite enactment strictly interpreted; and that is a principle which we are bound always to defend. In my opinion, there being no enactment requiring Court-fee to be paid on such claims as these, the learned District Munsif was wrong in his order: these petitions should be allowed and the claims inquired into without Court-fee: if the petitioners have now paid Court-fees, they should be refunded.
4. It may well be that this is a matter for legislation and that creditors should not on principle be allowed to urge their claims in such suits without paying some Court-fee on them. But this is a matter for legislation, in connection with which it would be necessary to consider such questions as what should be done in cases where the deceased's estate was insolvent and what should be done where some of the creditors had already obtained decrees against the deceased or his estate, on which they had already paid Court-fee. These questions no doubt would have to be taken into consideration if legislation in the matter was undertaken; but it is unnecessary for us to consider them now.
Anantakrishna Aiyar, J.
5. I should like to add a few words of my own, as the case involves the decision of a question of law of some importance. The question for decision is as to the amount of Court-fee payable on a claim sought to be filed by an alleged creditor to the estate of a deceased person, in respect of whose estate a preliminary decree for administration had been made. One of the creditors filed a suit, purporting to be instituted on behalf of himself and other creditors of the deceased debtor. A preliminary decree for administration was passed. Public notice was given of the preliminary decree for administration of the estate of the deceased person, having been passed, and claims from creditors of the estate were invited to be filed within a particular time. The petitioners in the revision petitions before us accordingly filed their claims. The learned District Munsif directed that, before their claims could be inquired into, they should pay ad valorem Court-fee on the amounts of their respective claims. The present Civil Revision Petitions have been filed by these claimants against that order of the learned District Munsif.
6. The suit that was instituted by the creditor--O.S. No. 519 of 1925--has at present ended in this preliminary decree for administration. We are not now concerned with the question as to the exact amount of Court-fee payable in respect of such a plaint. Both the Bombay and the Calcutta High Courts had to consider the question of Court-fee payable in respect of such a plaint. For purposes of Court-fee, both the High Courts have held that such a plaint should be treated as a plaint in a suit for an account. See Shashi Bhushan Bose v. Manindra Chandra Nandy I.L.R. (1916) 44 C. 890 and Khatija v. Shekh Adam Husenally Vasi I.L.R. (1915) 39 B. 545. The necessary Court-fee having been paid by the plaintiff in the suit, and the suit having--as I said--for the present ended in a preliminary decree for administration, the question with which we are now directly concerned is not whether the plaintiff in the suit has to pay any, and if so what, additional Court-fee, but whether the new claimants who, in obedience to the advertisement caused to be published in pursuance of the preliminary decree for administration passed in the suit, filed their claims, have to pay ad valorem Court-fee on the amounts of their claims. It was argued by the learned Government Pleader that such a plaint as the one in O.S. No. 519 of 1925, though filed by a single creditor, should be taken to be filed not in the individual capacity of that creditor of the estate but as filed by him as representing both himself and the other creditors of the estate. But this argument would be correct only in a very limited sense. If the suit should be taken to have been filed not only on his own behalf but on behalf of other creditors also, then no question of any Court-fee payable by the other creditors only would arise, since the other creditors would, on that hypothesis, being parties to the suit and the decree, not have to pay any Court-fee at the time they filed their claims. If, however, all claimants other than the plaintiff on record have to pay Court-fee when filing their claims in pursuance of the preliminary decree for administration, then, even creditors who have obtained independent decrees for moneys due to them from the estate would have to pay Court-fees, afresh, on the amount of their decrees, which is of course very unjust. There is no provision of law to which our attention was called which directs the payment of ad valorem Court-fees in such circumstances by the claimants against the estate, whether their claims have ripened into a decree or not. Again, it has been decided that a plaintiff in such a suit can have his suit dismissed, compromised, withdrawn or otherwise settled out of Court by an arrangement with those representing the estate, without in any way caring for the interests of the other creditors of the estate. There is a direct observation to this effect by Sir Arnold White, C.J. and Oldfield, J., in Athalur Malakondiah v. Lakshminarasimhalu Chetty : AIR1914Mad646 . There is also English authority to support such a position.
7. At page 1631 of Vol. 11 of Williams on Executors and Administrators, it is mentioned as follows:
After the usual administration judgment or order, every creditor has an interest in the suit, and is in a sense deemed to be before the Court; yet, until such order, the plaintiff is dominus litis, so that he may deal with the action as he pleases; and he may settle the matter with the executor, by the latter paying the debt and costs of the action, and compromise the action and relinquish proceedings. And indeed the Court will compel the creditor to accept payment of his debt when the executor offers to pay it with the costs of the action.
8. In paragraph 392 at page 190 of Halsbury's Laws of England, Vol. XIX, it is observed:
If administration 'proceedings under the present practice arc commenced by an executor who is also a creditor of the testator, and a claim is brought in by a creditor for a simple contract debt, which was more than six years old at the time of the judgment but not at the time of the commencement of the action, the claim is barred by the statute.
9. Again, in paragraph 807 at. page 341 of Halsbury's Laws of England, Vol. XIV, it is stated as follows:
A judgment for administration prevents time from running against the claims of all creditors coming in under the judgment, but the mere institution of administration proceedings is not sufficient to effect this.
10. Again, at page 338, para. 798, it is stated that
The Court may also, where necessary to prevent proceedings by other creditors or by persons beneficially interested, make the usual order for administration, with a proviso that no proceedings are to be taken under the order without leave of the Judge in person. Nothing short of an order for administration will prevent a creditor from, suing the representative, or the representative from preferring creditors.
11. The law in India is also stated to be the same by the learned Judges in the case reported in Shashi Bhushan Bose v. Manindra Chandra Nandy (1916) I.L.R. 44 C. 890. At page 895 the learned Judges observed:
The suit is in essence for an account and application of the estate of the debtor for the satisfaction of the dues of all the creditors; the whole administration and settlement of the estate are assumed by the Court, the assets are marshalled, and the decree is made for the benefit of all the creditors. Creditors other than the plaintiff may come in under the decree and prove their debts and obtain satisfaction of their demands, equally with the plaintiff in the suit, and under such circumstances, they are treated as parties to the suit.... But although such is the nature of the suit, it is well settled that where one creditor sues on behalf of himself and the others for administration of the estate of the debtor, the defendant may, at any time before judgment, have the action dismissed on payment of the plaintiff's debt and all the costs of the action.
12. Their Lordships follow the observations to the same effect in Athalur Malakondiah v. Lakshminarasimhalu Chatty : AIR1914Mad646 where it was held by a Bench of this Court that
ft seems clear that under the English practice, where one creditor sues on behalf of others for the administration of the estate of a deceased person, the defendant may at any time before judgment have the action dismissed on payment of the plaintiff's debts and all the costs of the action. See Daniel's Chancery Practice, 7th Ed., Vol. I, p. 195 and the cases there cited.
13. If such a suit be treated strictly and in all respects as a suit brought by the other creditors also, then it would not be open to other creditors to file independent suits of their own in addition to such a suit when it was pending. On the other hand Courts have held that it is not only open to the other creditors to file suits to enforce their own claims, but that, if their claims should become time barred before the preliminary order for administration is passed, they could not successfully prosecute their claims against the estate. It has also been held that it is open to persons representing the estate to pay off any of the other creditors of the estate even when such a suit is pending, and that when they render an account in respect of the assets that have come into their hands they are entitled to be given full credit in respect of such payments. It has been clearly laid down by Jessel, M.R., in the case in In re Greaves, Deceased. Bray v. To field (1881) 18 Ch.D. 551 that, if the rights of the other creditors is barred by limitation when the preliminary order for administration is passed, then such creditors could not take advantage of the order for administration.
14. There is an early English case reported in Sterndale v. Hankinson (1827) 57 E.R. 625 where Sir Anthony Hart, V.C., while discussing the exact nature of suits like the one before us, laid emphasis on the fact that all creditors of the estate are also interested in such a suit; and the learned Vice-Chancellor went to the extent of observing that if the rights of the other creditors be not barred by limitation on the date of the plaint in such a suit, their rights would not be barred at all. That would seem to be the law in Ireland, as seen from the decision in Harpur v. Buchanan (1919) 1 Ir. Rep. 1 Jessel, M.R., in In re Greaves, Deceased. Bray v. Tofield (1881) 18 Ch.D. 551 had to consider how far that view of the learned Vice-Chancellor was sustainable after the Judicature Acts were passed in England. The learned Master of the Rolls remarked that, in early days, Equity Courts viewed question of limitation only as matter of laches and delay and as such would only be a guide to Equity Courts in the matter of exercising their equitable jurisdiction. It is clear that, after the Judicature Acts were passed, pleas of limitation apply to all actions whether tried in the Chancery Division or Common Law Division. It was further observed that the remarks of the learned Vice-Chancellor in Sterndale v. Hankinson (1827) 57 E.R. 625 should not be taken as authority on the point. In fact, the learned Master of the Rolls specifically stated as follows: 'Creditors had better not rely upon that decision of the Vice-Chancellor.' (It may be noted that the Vice-Chancellor's name is given in In re Greaves, Deceased. Bray v. Tofield (1881) 18 Ch.D. 551 as Sir John Leach, whereas it is given as Sir Anthony Hart in Sterndale v. Hankinson (1827) 57 E.R. 625. In Harpur v. Buchanan (1919) 1 Ir. Rep. 1 O'Connor, M.R., observed with reference to Sterndale v. Hankinson (1827) 57 E.R. 625 as follows:
The principle (of that case) is that a creditor's administration suit is one on behalf of all creditors, and that each creditor is entitled to the benefit of it just as if he instituted the suit himself. This may not now be the law in England, but it has always been followed in Ireland.
15. We also find that the text-writers have adopted the view of jessel, M.R. In the circumstances, it must be taken to be settled law in England that the mere filing of such a plaint does not stop the period of limitation running against the other creditors of the estate.
16. I think the above observations are enough to show that it is not strictly correct to say that the Suit No. 519 of 1925 was a suit to which all the other creditors should be taken to have been parties in the ordinary sense of the term.
17. Further, when once a decree has been passed, the only provision of the Court Fees Act by virtue of which additional Court-fee is payable is that provided for by Section 11 of the Court Fees Act. Under the terms of Section 11, the petitioners could not be called upon to pay ad valorem Court-fees when they filed their claims.
18. As I said the question of the Court-fee payable in respect of the plaint in O.S. No. 519 of 1925 is not before us at present; the only question which we have now to decide is what, if any, is the Court-fee payable on the claims preferred by the other creditors of the estate after an order for administration had been passed. If I understood the learned Government Pleader aright, there does not seem to be any specific provision in the Court Fees Act which exactly covers a case like the present. In fact the difficulty seems to have been felt by the senior Government Pleader of Calcutta, who argued the case reported in Shashi Bhushan Bose v. Manindra Chandra Nandy I.L.R. (1916) 44 C. 890, and he represented to the Court on that occasion that the Court-fees due to Government would be largely lost if such claimants are let off without being compelled to pay ad valorem Court-fees on the value of their claims. It was in that connection that the learned Judges, Mookerjee and Cuming, JJ-, made the remarks, that were read to us, at page 897 of the report. I must say that the learned Judges had not to decide the present question in that case. The only question before the Court was as to the amount of Court-fee payable in respect of the plaint in such a case. The observations therefore at page 897, relied on by the learned Government Pleader before us, were therefore only obiter. Further, the learned Judges, after observing that the case was not specifically covered by any provision of the Court Fees Act, only threw out an observation, with reference to the remark made by the senior Government Pleader of Calcutta, that by way of analogy the provisions of Section 11 of the Court Fees Act might be applied, It is possible that the learned judges' observations were meant to be no more than a suggestion that that would be the way in which such cases could be dealt with in any attempt to collect Court-fee from such claimants, if the learned judges purported to go further and meant to decide that, as the Court Fees Act now stands such claimants come within Section 11. of the Court Fees Act, and that they have to pay ad valorem Court-fee on the amount of their claims when filing their claims, then, with all deference to the learned judges, .1 am not able to agree with them. The Court Fees Act being a fiscal enactment has to be construed according to well-known rules of interpretation. The Courts are not entitled to strain the wordings of the Court Fees Act with a view to tax the subject. It may be that the present is ;v case of omission. If that is so, it is not a matter for the Courts but one for the legislature. Again, if argument by way of analogy be permissible, we find that under the provisions of Section 28 of the Provincial Insolvency Act, on the making of an order for adjudication, the estate of the insolvent vests in the Court or in the Official Receiver. There is a specific provision made in that section that, after that event, the money creditors of the insolvent are not entitled to commence an action to enforce their dues, but that, whatever reliefs they are entitled to, they should seek only in the insolvency proceedings. As far as I am aware, no ad valorem. Court-fee is levied from creditors who prove their claims in insolvency. If the intention was that, in respect of administration actions also, ad valorem. Court-fees should not be levied from the creditors who seek to file their claims in pursuance of the order of administration passed by a Court, then, we have got a consistent procedure covering these classes of cases. It was brought to our notice by the learned Advocate for the petitioners that Order 20, Rule 13, Civil Procedure Code, refers to the procedure to be followed with reference to insolvency; but, as I read the rule, it only goes to the extent of providing for the way in which the assets should be distributed among the secured and unsecured creditors, and refers to the Insolvency Act only to that extent and for that purpose; and the rule cannot, as its wordings now stand, be taken to expressly cover the question of Court-fee also. It is enough to say for the present that, if there is an omission in the Court Fees Act, the litigant is entitled to take advantage of the same.
19. Finally, I take it that, when a preliminary order for administration is passed, a receiver is at once appointed. It is a settled rule of practice that no suit can be instituted against a receiver appointed by a Court without the permission of the Court. When the Court has invited claims with a view to have them adjudicated and to have the estate before the Court administered among the creditors, etc., the Court is not ordinarily likely to refer a claimant to a separate suit. I am not here concerned with a case where, for any special reason, the Court may consider that in the circumstances a separate suit should be filed to have the claim properly adjudicated, and may grant permission for the filing of such a suit against the estate in the hands of the receiver. In any event, the present is not alleged to be such a case, and that is not the reason given by the learned District Munsif I have accordingly come to the conclusion that, as the law now stands, Courts are not entitled to demand from claimants like those before us ad valorem Court-fee before their claims are entertained by the Court administering the estate of the deceased debtor.
20. I agree with my learned brother that the orders of the Lower Court in these petitions should be reversed and the ad valorem Court-fee, if paid, directed to be refunded. We make no order as to costs in the Revision Petitions in the High Court in the circumstances.