Andrew vs State of Kerala

Jagannadha Rao, C.J.—This appeal is preferred against the order of the learned Single Judge dismissing the writ petition.

The appellant in the appeal was also the appellant in a first appeal, AS 69 of 1991 on the file of this Court. The appellant had filed that appeal as an indigent person. The Court fee payable on the memorandum of appeal was Rs. 12,62,680/ -. The appeal suit was dismissed by a Division Bench of this Court on 5.2.2991. Ext. P2 is a copy of the decree. Admittedly, there is no direction in the decree that the court fee is to be recovered by the government under provisions of the Revenue Recovery Act or by another method. Even so, the respondents have sought to take proceedings against the appellant for recovery of the same. Appellant, therefore, approached this Court and filed a writ petition contending that unless and until an order is passed under Rule 12 of Order XXXIII CPC by the Court, the amount cannot be recovered, under Rule 14.

We have issued noticed to the government and heard learned Government Pleader also.

Having regard to the provisions of Order XXXIII Rule 12 CPC we are of the view that the respondents, should be restrained from recovering the above said sum of Rs. 12,62,680/- from the appellant till such time as the respondents approach this Court in the above said appeal suit and obtain an order under Order XXXIII Rule 12 CPC in regard to payment of court fee under Rule 10, 11 or 11(a) of Order XXXIII, as the case may be. It is only then that Rule 14 of Order XXXIII shall come into play.

The appeal is allowed as stated above. No costs.