Panchapakesa Ayyar, J.
1. This is an interesting case where the State of Madras has appealed against the order of the Principal Subordinate Judge, Devakoltai, in E. P. No. 169 of 1949, in O. S. No. 94 of 1946, dismissing the execution petition filed by the Government for attaching the defendants' moveables on the ground that the Government was not a party to the decree and could not execute it, and that, even if it was entitled to execute it, it could not be allowed to do so, under Section 11 of the Cour-fees Act, till the additional court fee of Rs. 1552-7-0 due on the amount decreed to the plaintiff under the compromise decree was paid.
The respondents in this civil miscellaneous appeal (the defendants-judgment-debtors) are all absent and have not been represented by counsel. So, the learned Government Pleader has been left to argue the intriguing point of law involved alone, without opposition or rival. Still, as it is the court's duty to consider, even in such coses, whether the appellant can have the relief, he wants, by getting the lower court's order set aside and being permitted to execute the decree regard-ing the additional court fee unconditionally, I have considered the matter fully and am convinced that the lower court's order, regarding the non-executability of this decree by the Government, is correct, as the Government have not proved their right to execute it, let alone their right to execute it without even paying the deficit court fee, under Section 11 of the Court-fees Act.
2. The facts were briefly these: The plaintiff, Meyyammal Achi, had brought a suit for accounts regarding a deposit in the defendant's firm in Kuala Lampur (Malaya) against five defendants, the 1st defendant, Ramaswami Chettiar alone being a major, the others being his minor sons. She had valued the suit at Rs. 5500 and had paid a court-fee of Rs. 442-7-0. Finally, the parties compromised the matter, and, on 16-9-1948, the plaintiff got a compromise decree for Rs. 40,309-6-0 (in Indian currency) to be paid on or before 1-12-1951, at Kuala Lampur in instalments. If the defendant did not pay the amount as per compromise, the plaintiff was permitted under the compromise to proceed against the defendants' properties in Kuala Lampur, Bentre, and headquarters (Oor) by way of execution. Clause 6 of the compromise decree runs as follows: 'That the plaintiff do pay to the Government, before executing this decree, a sum of Rs. 1552-7-0 the additional court-fee due on the amount allowed to the plaintiff as per compromise, over and above the court fee paid on the valuation of the claim in the plaint.'
Mr. T. N. C. Srinivasavaradachariar was the Judge who passed the compromise decree. He was also the Judge who dismissed the Government's execution petition.
3. It is urged by the learned Government Pleader that the cunning plaintiff and the defendants (both belonging to the Nattukottal Chettiar caste) colluded and resolved that the decree 'should not be executed' through court, and the defendant, paid the plaintiff, outside the court, some amount the exact amount not being known to the Government -- in full satisfaction of the decree and thus the parties cheated the Government of the Court-fee due to it under clause 6 and necessitated the filing of the execution petition by the Government.
4. The Government filed E. P. No. 55 of 1949 for attaching the decree in favour of the plaintiff and for realising the sum of Rs. 1552-7-0 due to it as additional court fee along with a sum of Rs. 30 for interest. By an order dated 5-3-1949, the decree was directed to be attached, and prohibitory orders were served on the plaintiff and the defendants. No counter was filed to this execution petition by the plaintiff or the defendants. On 2-1-1949, the attachment was confirmed and E. P. No. 55 of 1949 was closed. Then the Government filed E. P. No. 169 of 1949 for attaching the defendants' moveables for the realisation of the court fee, which, with interest, had now come to Rs. 1594-9-0. On 20-8-1949, an order for attachment was made, but subsequently, the first defendant (the father and guardian of the other four defendants) appeared and applied in E. A. No. 430 of 1949 to be permitted to state his objections to the execution. By an order dated 31-8-1949, he was permitted to file a counter and the issue of the warrant for the attachment of the moveables was stayed. He then filed a counter in which he contended 'inter alia' that the Government had no right to execute the decree against the defendants for two reasons.
Firstly, it was not a party to the decree & had no executable decree against the defendants in its favour, and, secondly, the decree could not be executed under Section 11 of the Court-fees Act without the additional court fee of Rs. 1552-7-0 being paid. The learned Subordinate Judge held that the Government could not be deemed to be a party to the decree on the analogy of Order 33, rule 13, C. P. C., or to have the rights under Order 33, Rule 14, C. P. C., and that it had also no first charge on the subject-matter of the suit on the analogy of Order 33, Rule 10, C. P. C., or a right to apply to the court for an order for payment of the court fee on the analogy of Order 33, Rule 12, C. P. C. He also held that the first defendant could object to the execution, in spite of the order dated 3-4-1949, as the first defendant's objections were only 'on points of law' and the Government had no right to apply for execution of the decree against the defendants under the law. So he dismissed the execution petition. Hence this civil miscellaneous appeal by the Madras State.
5. The first question that arises for determination is whether the State Government gets a right to the additional court-fee of Rs. 1552-7-0, even if the plaintiff, in whose favour the decree stands, does not want to execute the decree, or before he tries to execute the decree. This point has, in my opinion, to be answered categorically in the negative, though it is not entirely free from difficulty. Though the learned Government Pleader urged vehemently that the court's time had been wasted on hearing this matter and that, therefore, the court-fee had been earned, and that therefore, whether the decree-holder wanted to execute the decree or not, he should pay the deficit court-fee, he had to admit that there were some cases where the court has wasted its time and yet the Government do not as a matter of fact recover the court fee.
Thus, when a suit has been fully decided by the trial court after receiving (through some mistake or error) less than the due amount as court fee, and the appellate court, by virtue of its powers under Section 12(2) of the Court-fees Act directs the deficit court fee on the plaint to be paid and it is not paid, the only penalty enforced is the dismissal of the suit or the appeal, as the case may be. Sec the ruling in -- 'Mt. Bibi Aliquinnisa v. Md. Shafiq' : AIR1950Pat358 . No execution is taken out against the plaintiff for recovering the deficit court fee in the suit. So too when a person has filed a suit or an appeal with insufficient court fee and has failed to pay the deficit court fee as per order of court, usually, the only penalty is the rejection of the suit or the appeal, as the case may be under Order 7, Rule 11, C. P. C. etc. No execution is taken by the Government for recovering the deficit court fee.
I may add that in the present case it was also a 'compromise decree', where the court did not spend much time and pass its own decree. It seems to me that this principle of non-executability will apply with greater force when the compromise allowed execution only if payment was not made as agreed on, and said nothing about any deficit court fee, and Clause 6 of the decree also says that the plaintiff should pay the Government the deficit court fee 'only before executing the decree', implying thereby that the plaintiff was bound to pay 'only if and when' he executed the decree. 'Prima facie', there is nothing to prevent the plaintiff from settling with the defendant outside the court and receiving either the whole or a portion of the amount decreed, and that will not amount to 'cheating' the Government, as the learned Government Pleader contends. The plaintiff's liability to pay the deficit court fee to the Government will arise only if and when he tries to execute the decree. I cannot see, how, under the law, a decree-holder can be compelled to execute his decree so that the Government may be enabled to recover the deficit court-fee. That is why 'fraud' by both sides is set up now.
'Fraud' stands, no doubt, on an exceptional footing under the law. It cuts through almost everything. But whether the charge of cheating the Government of the court fee, by taking the whole amount under the decree from the defendant outside the court, relied on by the learned Government Pleader, will stand, and whether such settlement outside the court will amount to cheating and abusing the process of court, and will affect the above principle of non-executability, has to be determined in a -proper suit brought by the Government against the plaintiff and the defendants, claiming 'damages', on account of such 'fraud'. There was no such suit here. I do not think such a suit will succeed, unless the plaintiff had executed the decree without paying the deficit court fee and recovered the decree amount.
6. It is interesting to note that this subject of non-payment of deficit court fee was considered by Ramesam J. in the case in 'Venkatanandam in re', AIR 1933 Mad 330 (B). The learned Judge remarked as follows:
'According-to the view of the Privy council, the appellant' whether plaintiff or defendant, can give some valuation, and' one cannot complain that the amount in the memorandum is not the proper amount the reason being that, in suits for accounts, it is impossible to say at the outset what exact amount the plaintiff will recover, and' they apply this 'principle to appeals also. The question 'that arises is, if the appellants can file their appeals on any valuation they like and pay court fee on it, and the whole ease can be heard on such payment, and if, as the result of the hearing of the appeal, they can succeed for a much larger amount than the amount for which they paid court-fees, can it not be said that the. Crown has been deprived of the court fee properly due, and, if so, how is this amount to be recovered.
Lord Tomlin referred to Section 11 of the Act, but it seems to me that Section 11 may not give adequate remedy, to the Crown, for Section 11 refers to execution, and, 'before the decree-holder seeks execution, he must pay the court fee. But suppose the party settled the matter privately, and the decree-holder had not to seek execution, would not the Crown be deprived of the proper court fees in such a case?' Section 11, no doubt, furnishes one method, but, for the protection of the interests of the Crown, it is necessary to indicate what the proper practice should be. If the appellate court, after hearing and consideration of the appeal, comes to a conclusion in favour of the appellant in respect of a far larger amount than what he has paid court lees for, the proper thing would be to post the case for orders and direct the appellant to pay additional court fee and only then the judgment should be delivered 'and the decree should be allowed to be drawn up. I think this protects the Crown's interests properly'.
It is significant that the learned Judge wanted the judgment to be delivered, and the decree drawn up, only after the deficit court fee was paid up, and did not say that, even if the judgment was delivered and the decree drawn up, as here, the Government would be entitled to file an execution petition for recovering the deficit court fee, even if the decree-holder did not try to execute the decree in his favour, but settled it privately outside the court. The inference is obvious, Government have no such right.
7. The learned Government Pleader relied on the analogy of the court fee due in a pauper suit or appeal under Order 33, Rules 10 to 14, C. P. C. But there are three vital differences between such cases and cases like these. The first is that a pauper is allowed, under the law, to file a suit or appeal without paying the requisite court fee. The plaintiff here is, admittedly not a pauper, and I cannot see how the special provisions relating to paupers can be transplanted and applied to the case of non-paupers like him. Secondly, under Order 33, Rule 10, the amount of court fee which would have been paid by the pauper plaintiff, if he had not been permitted to sue as a pauper, will be covered by a decree in favour of the Government 'without any condition', whereas here, there is 'no such unconditional decree' in favour of the Government, clause 6 of the decree specifically stating that the plaintiff should pay to the Government the deficit court fee of Rs. 1552-7-0 'only before executing the decree'-. Thirdly, under Order 33, rule 10, C. P. C., the court fee thus decreed to the Government shall be the first charge on the subject matter of the suit, whereas the deficit court fee in this case is not only not the first charge but not a charge at all, and has to be recovered like any ordinary amount decreed. Besides, in, cases like this, the Government do not also' get the rights under Order 33, Rules 12, 13 and 14,' C. P. C.
8. The next point which arises for determination is whether the Government can be considered to be 'in any case' a party to the decree in a case like this. I consider that the Government can be considered to be a party to a decree like this, where there is a clause like clause 6, giving it a right to recover a certain amount in certain contingencies from the plaintiff decree-holder, but only when the decree holder executes the decree without paying the court fee due. On this point alone I differ from the lower court's view, though I agree with its view that in no other case can the Government be considered to be a party to the decree entitled to appear and be heard. Even this right of Government will be subject, in my opinion, to conditions. The first is that 'the plaintiff must execute the decree' without paying the court fee, before the Government can claim to come on record and pray the Court to ask him to pay the deficit court fee due to the Government. The second is that the entire deficit court fee due should be paid under Section 11 of the Court fees Act before the decree can be executed by the Government also to recover Us court fee where the court has allowed execution without collecting it. Section 11 of the Court fees Act makes this obligatory, whether the execution is by the plaintiff or by the Government standing in his shoes, as by the confirmation of the attachment of the decree by the Government.
9. Section 11 of the Court-fees Act expressly says that the decree snail not be executed until such court fee is paid as would have been payable on the amount claimed in execution if a separate suit has been instituted therefor. The learned Government Pleader wanted to construe this as if it is a provision applicable only to the plaintiff and not to any representative of the plaintiff standing in lis shoes, like the Government. It is obvious that in a case for accounts, like this, the Government will have no remedy, against the defendants except as a representative of the plaintiff. Clause 6 of the decree itself shows this. It is the plaintiff who is made liable, and 'not the defendants'. So, the Government cannot have any greater rights than the plaintiff. Nor does Section 11 exempt the Government in whose favour a decree for the additional court fee is passed, in cases like this. Decrees in pauper suits stand on quite a different footing, as already stated. So even If the Government were entitled to execute the decree here (I hold that they were not) they could do so only after paying the additional court fee in full.
If the plaintiff, for whatever reason, has not paid it, due to his inability to pay or collusion with the judgment debtor, or sheer fraud, or forgetful-ness, or through carelessness of the court, the decree cannot be executed, under Section 11, till the additional court fee is paid, and the only thing the Government can do is to pay the deficit court fee itself, on behalf of the plaintiff, and then execute the decree (after attaching it) for double the amount of the deficit court fee, in order to recover the court fee advanced by them on behalf of the plaintiff and the court fee due to them under the decree from the plaintiff. In a case like this, where the decree is for more than Rs. 40,000 and double the deficit court fee due will only amount to slightly over Rs. 3000 it may be profitable to the Government to do so. But, here again, the first question, whether the Government have a right to recover the deficit court fee from the plaintiff before the plaintiff executes the decree; will arise and will be an insuprable obstacle.
10. It was urged by the learned Government Pleader that as the Government ultimately appropriate the' court fees, it will be a sheer meaningless technicality to ask the Government to pay the deficit court fee on behalf of the plaintiff and then execute the decree regarding the court fee advanced on behalf of the plaintiff and the court fee due from' the plaintiff. I cannot agree. Certain technicalities have got a deep meaning. It is hot the case of the Government pleader that the Government can 'file a suit' without paying the appropriate court fee, simply because the court fee' ultimately goes to the Government. That being so, the Government cannot be exempted from paying the deficit court fee under Section 11 even if it is entitled to execute the decree, which it is not.
11. The next point for consideration is whether, the attachment of the decree having been made absolute and having become final, the first defendant could have been allowed by the lower court to file a counter raising all these thorny allegations. I do not see how he could have been, under the law, prevented. The attachment of the decree might have become absolute. But, the execution of the decree by the Government will still be possible, 'under the law' only after the Government toad proved 'its right to execute' it against the defendants, when the plaintiff had not sought to execute it, and after payment of the deficit court fee under Section 11. Such 'points of law' can be raised at any stage, as they go to the root of the matter, and the lower court was right in allowing the first defendant to raise these objections, however thorny the Government may find them. It must be remembered that the first defendant relied only 'on the law and the rules', and not on 'facts or findings on facts'.
12. In ' the end, therefore, I am of opinion, despite my 'differing from the lower court regarding the Government's being entitled to be brought on record, 'in one contingency', as a party to the decree, that the dismissal of the execution petition by the Government was correct and proper, because the Government had not proved its right to execute the decree at that stage, let alone its failure to pay the deficit court fee and the impossibility of allowing the execution of the decree by the plaintiff or by the Government without such payment. In this view, this civil miscellaneous appeal deserves to be and is hereby dismissed.
13. The learned Government Pleader asks forleave to appeal. No leave is necessary in the caseof a C. M. A. like this. So, it cannot be granted.It is argued that the point I have decided in thiscivil miscellaneous appeal is of great importanceand of every day occurrence. That is so. TheGovernment may, if they like, file an appeal forwhich they require no leave.