M.C. Ghose, J.
1. This is an application under Section 115, Civil P.C., by defendants 19 and 19-Ka in an administration suit. The plaintiff instituted a suit against defendant 1 for the administration of the estate of his deceased father. The other creditors including the present petitioners were made defendants in the said suit. The petitioners proved that the deceased owed to them a sum of over Rs. 18,000. The claim was accepted as correct by the Court. Then a certain pleader of Dacca was appointed a Receiver. He collected a certain amount of money and deposited it in Court, whereupon the Court on 20th February 1937, directed distribution of dividends to the extent of 7 1/2 per cent. of their claims to the creditors whose claims had been proved. The Receiver then asked the creditors to take their dues after paying proper court-fees in Court. The petitioners stated in reply that they were not liable to pay court-fees on the entire claim, inasmuch as the estate of the debtor would not be sufficient to meet the claims of the creditors in full and that if they are to pay any court-fee at all, it should be paid on the amount actually distributed to them. The Court by its Order No. 240, dated 30th August 1937, directed these petitioners to pay court-fees on their entire claim, namely a sum over Rs. 18,000.
2. Upon hearing the learned advocates for the petitioners, for the Receiver and the learned Senior Government Pleader on behalf of the Crown, it appears that the order of the Court below in directing the petitioners to pay court-fees on the sum of Rs. 18,000 is unjust and inequitable. These petitioners were not the plaintiffs in the suit. They were creditors of the deceased person and they were summoned as defendants and asked to state their claims. They stated their claims in full, though they knew that the estate of the deceased was not sufficient to pay their claims in full. Under Order 20, Rule 13 (2), Civil P.C., in such an administration suit the Court will observe the same rules as to the respective rights of the creditors as may be in force for the time being with respect to the estate of a person adjudged insolvent. If the petitioners had been the plaintiffs and made a claim to get the sum of Rs. 18,000 out of the estate of the deceased, they would certainly be found liable to pay court-fees on the sum of Rs. 18,000. But they have not done so and it is, in my opinion, unjust and inequitable to call upon them to pay court-fees on that sum while offering them a dividend to the extent of 7 1/2 per cent. of their claim. Having regard to the claims of the fiscal authorities on the one hand and fair dealing towards the petitioners, who were the defendant-creditors in an administration suit on the other, the proper order would be that the defendant-petitioners ought not to be called on to pay court-fees on any sum beyond what they are paid. The rule is accordingly made absolute on these terms with costs bearing-fee being assessed at two gold mohurs. The receiver's costs will be paid out of the estate.
B.K. Mukherjea, J.
3. I agree with my learned brother in the order that has been passed by him. The petitioners before us are two of the creditors defendants in a suit commenced by another set of creditors for administration of the estate of a deceased debtor who is now represented by defendant 1. Both these petitioners were impleaded as parties defendants before the preliminary decree, which was passed on 28th September 1934. They set out in their written statements their claims against the estate of the deceased aggregating to more than Rs. 18,000, and' the preliminary decree, besides containing other directions, declared, in general terms, that the claims of the creditors were proved. One Babu Amulya Mohan Ray was appointed as a receiver to carry on the administration of the estate in pursuance of the directions contained in the preliminary decree. By an order of the Court dated 28th February 1937, the Subordinate Judge allowed certain dividends to be paid to the creditors on a basis of 7 1/2 per cent. upon the amounts found to have been due to them. The petitioners received notices from the Receiver asking them to receive the amounts declared in their shares amounting to about Rupees 1100 on payment of proper court-fees. The petitioners, as the records of the Subordinate Judge show, declared their willingness to pay court-fees on the actual amounts they were going to receive as dividends, but they were not willing to pay court-fees upon the entire amount of their claims, irrespective of what were being paid to them as dividends. The matter came up before the Court on a reference made by the Receiver and the Court decided the point against the petitioners and in favour of the Receiver. It is this order which we have been invited to revise.
4. In this matter, as a question of revenue was involved we had besides hearing the advocates on both sides, had the advantage of having an able argument addressed to us by Mr. Rama Prosad Mukherjee, the Senior Government Pleader who appeared for the Crown. It has been contended before us by the Senior Government Pleader that the petitioners, though defendants in the administration suit, were in the position of plaintiffs and they would have to pay ad valorem court- fees on the claims they made, as if they were plaints for recovery of specific sums of money. It is contended further that the court-fees sought to be recovered from them, could be realized on the analogy of Section 11, Court-fees Act. On the other hand, it is argued on behalf of the petitioners that there is no provision in the Court-fees Act covering a case of this description, and as the Act is a fiscal statute, it must be construed strictly and cannot be applied by analogy.
5. Now, it cannot be disputed that an administration suit is, at its inception, a suit for accounts. What is sought for really, is an application of the assets left by the deceased debtor for settlement of all the amounts due to the creditors. It is the Court which takes upon itself the task of an administrator and it collects the assets which are then marshalled and distributed among the various creditors. At the same time it would not be correct to say that the plaintiff instituted the suit on behalf of and representing all the creditors. If that were so, no question of payment of court-fees by the other creditors would arise. As observed by Sir Asutosh Mukerjee in Shashibhusan Bose v. Manindra Chandra Nandi (1918) 5 AIR Cal 883 that once a decree is passed in an administration suit the creditors other than the plaintiff, can come in under the decree and on proof of their debts obtain satisfaction of their demands. If they decline to come in, they would be excluded from the benefit of the decree, though they would be bound by the acts done under the authority of the Court. The learned Judge observed at the same time that:
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.
6. Till therefore the decree is passed it is the plaintiff who is the dominus litis and has the carriage and conduct of the proceedings. No other person, whatever his interest may be, can be said to occupy the position of a plaintiff up to that stage at any rate. It is the plaintiff who can abandon or compromise the suit in any way and so far as the other creditors are concerned, it seems to be well settled now that they cannot avoid limitation with regard to their own debts simply because the suit is commenced, unless a decree has actually been passed. The decree once passed, would certainly be binding on all the creditors and the rules laid down under Order 21, Rule 13, Civil P.C., make it clear that the Court is to apply the principle of insolvency laws in distributing the assets actually realized, among the various creditors of the deceased. The question now is whether a creditor defendant in whose favour the decree in the administration suit has been made is bound to pay court-fees at all and if so at what stage. So far as the present case is concerned the petitioners before us put forward their claims in their written statements. As I have said before, they could not be regarded as plain-tiffs, at any rate at that stage and it would be doing violence to the language of the Section if it is said that the written statement put in by these petitioners was a plaint for recovery of money.
7. Mr. Mukherjee has drawn our attention to the decisions of the Allahabad High Court in Parmanand v. Jagat Narain (1910) 32 All 525 and Ram Charan v. Bulaqi (1924) 11 AIR All, as authorities for showing that in a suit for accounts between partners or between a principal and an agent, if it is proved, on taking of accounts, that there is a balance due to the defendants, the Court can and should in such cases pass a decree in favour of the defendant after taking from him the requisite court-fees. This principle need not be disputed, but in my opinion, it is of no real assistance in the present case. If a decree for a specific sum of money is made in favour of a defendant as a result of accounting between him and the plaintiff, he may be regarded as a plaintiff in a cross suit for recovery of that sum of money and may be asked to put in the proper court-fees payable on that amount. But in an administration suit, no decree for any specific sum of money can be passed in favour of the creditors. A preliminary decree in such cases, as Appx. D, Form 17, Schedule 1, Civil P .C., shows, should direct a taking of accounts as to what was actually due to the plaintiff and other creditors by the estate of the deceased and it would contain directions as well as to the realization of assets by sale or such other means as the Court thinks proper. It seems to me that an administration suit is analogous to an account suit up to a certain stage only, and that the two are not identical for all purposes, at least, so far as the ultimate decision of the Court is concerned. The account suit ends in a decree for a specific sum of money be it in favour of the plaintiff or in favour of the defendant. There is no duty cast upon the Court in such cases to have anything to do with the realization of the assets of the debtor and the distribution of the same amongst the creditors. An administration suit on the other hand, par-takes to some extent of the nature of an insolvency or winding up proceedings. The Court here realizes the assets in such way as it thinks proper; it marshalls these assets, according to the rules of administration and distributes them among all the creditors in the way recognized in insolvency proceedings. This, in my opinion, makes a fundamental distinction between an administration suit and an account suit and we cannot say, on the analogy of an account suit that the defendant creditor is to be regarded as a plaintiff in a cross claim for the whole amount that he actually claims in the proceedings, even though, after due administration, he may be entitled to a very small fraction of the same. There is no such provision in the Court-fees Act and in my opinion the extreme contention raised by Mr. Mukherjea that the defendants creditors must pay the court-fees upon the full amount of their claims as made in their written statements is not tenable.
8. The trial Judge based his decision upon the observation of Sir Asutosh Mookerjee in Shashibhusan Bose v. Manindra Chandra Nandi (1918) 5 AIR Cal 883 which has been referred to above. That was a case where the question arose as to what were the court-fees payable by the plaintiff in an administration suit. The trial Court, whose order was set aside by this Court, was of opinion that the plaintiff should pay court-fees upon a calculation of the total debts due to all the creditors by the deceased debtor and for the ascertainment of which evidence was directed to be adduced at that stage. The plaintiff in that suit had valued it at Rs. 1540 which was the sum due to him. It was held by the learned Judges that a suit for administration was a suit for accounts and consequently it was permissible on the part of the plaintiff to mention any value he liked and he was not bound to pay full court-fees on the total amount of debts that might be due upon the estate of the deceased. It was argued on behalf of the Crown which was represented in that case that if the plaintiff was allowed to value the suit according to the relief he sought, the revenue of the Crown might suffer as the other creditors of the debtor would in that case obtain relief without payment of proper court-fees. In answer to that it was observed by Sir Asutosh Mukerjee that there need not be any such apprehension at all. It was said by the learned Judge that:
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, Court-fees Act.
9. The observation is undoubtedly an obiter and has been held to be so in Ramaswami Ayyar v. Rangaswami Ayyar (1931) 18 AIR Mad 683, though I must say that an expression of opinion of a Judge of the eminence of Sir Asutosh Mukerjee is entitled to the highest respect. To me it seems that it was a mere suggestion thrown out by the learned Judge as a thing to be considered by the Court in cases where this matter would come up for decision. It was not however his considered opinion upon the point as the case did not require any decision on that point at all and he did not purport to decide it finally. It seems to me that even taking the observations as it is, the decision of the Court below cannot be justified. The observation contemplates a case where after a preliminary decree is passed, an advertisement is issued, inviting creditors who ex hypothesi were not parties to the suit to lodge their claims with a view to have their dues ascertained. In such cases, it is said, the claim may be considered as a plaint for recovery of money. Whether this proposition is right or wrong, the circumstances that are present here do not certainly attract the operation of this principle. Here the petitioners before us were parties-defendants before the preliminary decree was passed and they have not, after the decree was passed, come up before the Court to have any adjudication of their claims. No claims have been preferred by them on the basis of the preliminary decree, and the observation of Sir Asutosh Mukerjee referred to above is not applicable in this case.
10. In my opinion Section 11, Court-fees Act, cannot also be invoked to support the decision of the Court below. Mr. Mukerjee has drawn our attention to the amended pro-visions of Section 11, Court-fees Act, as it obtains in Bengal. It is conceded that its wording does not include a suit for administration but it is said that the words 'a suit for accounts' are sufficiently comprehensive to include an administration suit as well. As I have said already the two are not identical and even though on certain points there is resemblance between them, the analogy is not complete. Even if it be regarded as a suit for accounts, we have to construe the word 'plaintiff' as used in Section 11 to mean the defendant as well and if we are prepared to do that, it is difficult to say in the facts of the present case that any court-fee has been paid by the petitioners which has exceeded the actual claim to which the Court has found they are ultimately entitled. Having regard to the nature of the decree that is passed in a suit for administration, it is difficult also to say that any relief has been given in excess of what the plaintiff or the defendant claimed in the suit itself. At the top of all, we must construe a fiscal statute in favour of the subject and must not extend it by analogy. I am therefore of the opinion that the petitioners were not bound to pay court-fees on the entire amount which they claimed against the estate of the deceased and the decision of the Subordinate Judge to that effect must be set aside.
11. As I have already pointed out, the petitioners did not dispute their liability to pay court-fees on the actual amount of dividends that was allowed to them by the Court. It may be said that this was a decree for money for the said amount passed in favour of the defendants. There has however been no final decree passed in the case as yet, and I am told that other dividends might be declared before the final decree is made. I do not know of any provision in the Court-fees Act under which court-fees are leviable in instalments as dividends are declared from time to time. The proper time to levy court-fees might arise if at all when the amount payable to the defendant is finally ascertained. As however the petitioners did not raise this question and admitted their liability to pay these amounts, I agree on that ground alone, in the order which has been made by my learned brother without deciding this matter finally in the present case. The result is that the rule is made absolute with costs; hearing fee two gold mohurs. The Receiver's costs will be paid out of the estate.