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The Secretary of State for India in Council Vs. Tirupura Sundarammal and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1926Mad474; 96Ind.Cas.112
AppellantThe Secretary of State for India in Council
RespondentTirupura Sundarammal and anr.
Cases ReferredChandrareka v. Secretary of State
Excerpt:
civil procedure code (act v of 1908), order xxxiii, rules 10, 12 - pauper suit--court-fees payable--fees payable as on date of suit or decree--decree for lesser amount--plaintiff, liability of--government, appeal by. - .....contention is that the government pleader should apply to the lower court for an order under rule 10. rule 12, no doubt, gives the right to the government to apply to the court to make an order for the payment of court-fees under rule 10 or rule 11. but it is not necessary that an application should be made to the lower court before the government can appeal against any of the terms of the decree. under rule 13 any order passed under rule 10, rule 11 or rule 12 shall be deemed to be a question arising between the parties to the suit within the meaning of section 47. there being a decree in which a certain amount is mentioned as due to the government, it is open to the government to appeal against that portion of the decree; and, therefore, it is not necessary that an application.....
Judgment:

1. The 1st respondent brought a suit in forma pauperis against the 2nd respondent for maintenance. The suit was compromised by the parties and a decree in terms of compromise was passed. The District Judge held that the Court-fee payable by the 1st respondent was that which was made payable by the recent amendment of the Court Fees Act. Against that order the Government have preferred this appeal. The order of the learned District Judge in calculating the Court-fee payable on the plaint according to the rate prevailing on the date of the decree is bad. Under Order XXXIII, Rule 10 the amount of Court-fee payable is that which is payable on the date of the plaint. Order XXXIII, Rule 10 says that '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.' When a person brings a suit, he pays Court-fees on the amount of relief claimed in the plaint, or on the valuation in the plaint, and the Court-fee is paid before the plaint is admitted and filed as a suit. Therefore the amount payable by the 1st respondent in this appeal is the amount which was payable on the date when she filed her plaint.

2. The next question is whether this Court should vary the decree of the District Judge by directing the plaintiff to pay the difference between the amount decreed and the amount payable. Following the principle of the decision in Chandrareka v. Secretary of State for India 5 Ind. Dec. 116 we hold that the plaintiff is bound to pay the difference between the Court fee payable by her and the amount which is ordered to be recovered from the defendant, for, it is for the plaintiff to pay the Court-fee on her plaint and the defendant is only bound to pay on the amount which is decreed against him, Mr. Venkatarama Iyer's contention is that the Government Pleader should apply to the lower Court for an order under Rule 10. Rule 12, no doubt, gives the right to the Government to apply to the Court to make an order for the payment of Court-fees under Rule 10 or Rule 11. But it is not necessary that an application should be made to the lower Court before the Government can appeal against any of the terms of the decree. Under Rule 13 any order passed under Rule 10, Rule 11 or Rule 12 shall be deemed to be a question arising between the parties to the suit within the meaning of Section 47. There being a decree in which a certain amount is mentioned as due to the Government, it is open to the Government to appeal against that portion of the decree; and, therefore, it is not necessary that an application should previously have been made to the lower Court for what the Government considers as the proper Court-fee.' The Court-fee payable by the 1st respondent will be Rs. 315 minus Rs. 20-3-6. It is agreed that the 1st and and respondents will pay in proportion of 5 to 2, As the Government Pleader has appealed against the order of the lower Court as a matter of principle is involved, we leave it to the Government to consider whether in a case like this it would be necessary to get the full amount from the 1st respondent who is a widow and who brought the suit for maintenance. There will be no order as to cost' of the appeal.


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