K.L. Saradambal vs K. Vaidyanatha Sastri and Others

Mohan, J.—The matter having been set out for being spoken to in relation to the payment of court-fee comes before us.

The appeal in question was filed in in forma pauperis against the dismissal of the suit Original Suit No. 173 of 1969. In the suit, the relief was for

recovery of certain movables and for delivery of possession of half portion of a house. The suit itself was filed in forma pauperis. That was

dismissed by the learned Subordinate Judge of Chingleput by a judgment dated 8th February, 1972. Against that dismissal the appeal was also

filed in forma pauperis. Ultimately when it came before us on 17th February 1981, we passed the following order:

Mr. V. Narayanaswami, learned Counsel for the Appellant states that the Appellant died long ago and he has not received any instructions from

the legal representatives of the Appellant to prosecute the appeal after bringing them on record. Hence the appeal abates.

The question now arises as to the provision for recovery of court-fee. In the case of suits filed by pauperis or indigent persons Order XXXIII

rule, 11-A CPC specifically states as under:

Where the suit abates by reason of the death of the Plaintiff or of any person added as a co-Plaintiff, the Court shall order that the amount of

Court-fee which would have been paid by the Plaintiff if he had not been permitted to sue as an indigent person shall be recoverable by the State

Government, from the the estate of the deceased Plaintiff.

But Order XLIV does not contain a similar provision and the said Order deals with appeals by indigent persons. Therefore, as in the instant case,

when the appeal has abated, what would be the proper provision in relation to recovery of court-fee falls for our consideration.

In rule of Order XLIV CPC it is stated:

Any persons entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application

accompanied by a memorandum of appeal and may be allowed to appeal as an indigent person subject, in all matters, including the presentation of

such application, to the provision relating to suits by indigent persons in so far as those provisions'' are applicable.

It is well settled in law now that an appeal is only a continuation of the suit and it is not necessary for us to refer to any particular ruling except

the one reported in Garikapatti Veeraya Vs. N. Subbiah Choudhury, where at page 553 it is observed that:

the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and

are to be regarded as legal proceeding.

Further a reading of rule 1 of Order XLIV also discloses that, the provisions relating to suits can be applied mutatis mutandis to appeals as well.

The learned Government Pleader submitted before us that though the appeal has abated, yet, in relation to the recovery of court-fee the

provisions contained in Order XXXIII rule 11-A shlould be held to apply to the present case. We find great force in this submission. As a matter

of fact,rule 12, which is the relevant rule in this regard, may also be looked up. It has been held in State of Kerala Vs. Chandradass Butt and

Others, that the provisions of this rule applied mutatis mutandis to appeals provided for under Order XLIV CPC Code. The Division Bench of the

Kerala High Court observed:

The relevant provision of law regarding directions for court-fee in matters arising from pauper proceedings is contained in Order XXXIII, Rules,

10 and 12 CPC Code. We shall read the two rules for a proper appreciation of the question at issue:

Costs where pauper succeeds: Where the Plaintiff succeeds in the suit, 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: such amount shall be recoverable by the State Government from any

party ordered by the decree to pay the same and shall be a first charge in the subject of the suit.

State Government may apply for payment of Court-fees:

(1) The State Government shall have the right at any time to apply to the Court to make an order for the payment of Court-fees under Rule 10,

Rule 11, or Rule 11-A.

(2) No order for payment out of money standing to the credit of any suit instituted in forma pauperis shall be made on the application of any party

except after notice duly to the Government Pleader on behalf of the Government.

It is clear from Rule 12 that the State Government can at any time apply to the Court to make an order for payment of court-fees under Rule 10,

the provision of rules 10 and 12 in Order XXXIII will apply mutatis mutandis to appeals, as provided for in Order 44, Code of CPC That this

Court has jurisdiction to direct payment of court-fees is beyond dispute. The only question that needs consideration is as to who should be made,

liable to pay the court-fees.

Having regard to all the above, we direct that the court-fee payable on grounds of appeal Rs. 3,826.50 (Rupees Three Thousand eight hundred

and twenty six and paise fifty only) will be recoverable from the estate of the deceased Plaintiff.