P. Gopalakrishna Naidu vs The State of Madras

K. Veeraswami, C.J.—This is an appeal from an Order of Kunhamed Kutti, J., agreeing with the Mister that the State was entitled to

payment out of court-fee out of the sum lying to the credit of C.S. No. 84 of 1952. That was a suit instituted by the second and third respondents

to enforce a mortgage which had been executed by the appellant. In execution of the mortgage decree, a sum of Rs. 56,000 was realised, and

after appropriating the amount towards discharge of the decree, there remained a balance of Rs 3,979. The appellant''s son instituted O Section

No. 1973 of 1966 on the file of the City Civil Court, Madras, for setting aside the mortgage decree and for partition and separate possession of a

half share in the hypotheca. This suit was decreed on nth December, 1957. That suit has been allowed to be instituted in forma pauperis. On 19th

January, 1961, the appellant''s son died. Thereafter, the appellant, by application No. 1253 of 1964, applied for withdrawal of the amount which

stood to the credit of C.S. No. 84 of 1952. The Master directed that a sum of Rs. 1,489.59 be paid to the appellant and that the Court should

retain a sinrlar sum of Rs. 1,489.58. He further directed that a period of three months from the date of his order, that is, till 1st March, 1965, be

allowed for a suitable application to be filed on behalf of the State, and if such an application was filed, the amount should be paid out to the State

if it established satisfactorily the claim towards court-fee, but if no such application was filed or if the State failed to establish its claim to the amount

by way of court-fee, the appellant should be entitled to payment out of the sum. Then followed Application No. 863 of 1965 filed by the State for

payment out. The application was resisted by the appellant on the ground that it was barred by limitation. It was contended for him that since the

State failed to keep alive the decree in O.S. No. 1973 of 1956, which was dated nth December, 1957, and the application of the State was made

only on 28th December, 1964, the State was not entitled to seek payment out and that too by an application. This contention was not accepted

either by the Master or by Kunhamed Kutti, J. Before us the same contention was reiterated for the appellant. It was urged that Order 33 of the

Code of Civil Procedure, does not provide for an application for payment out of court-fee out of funds remaining to the credit of a suit more

especially a suit, other than the one in which the court-fee became payable to the State, and that its proper remedy was either to execute the

decree in O.S. No. 1973 of 1956 or to proceed under Order 33, Rule 14, Code of Civil Procedure. In any case, it is said, the application, even if

it lay, was barred by time, as it would be governed by Article 181 of the Limitation Act, 1908.

It is true that none of the provisions of Order 33 of the Code enables the State to file an application for payment out of the court-fee. Rule 12(1)

of Order 33, which has been relied on by the State, contemplates by its very language an application to the Court for making an order for payment

of court-fee under Rule 10, Rule 11 or Rule 11-A. This provision can be invoked by the State only where the Court had failed earlier to make an

order under Rule 13 of Order 33. With reference to Sub-rule (2) of Rule ii, it was. said that this threw light upon the scope of Sub-rule (1) of Rule

12 and made it clear that an application by the State for payment out of the court-fee from a sum lying to the credit of any suit was permissible. But

Sub-rule (2) of Rule 12 is intended for a different purpose. Where a sum of money stands to the credit of any suit which has been instituted in

forma pauperis no application for payment of money thereout shall be ordered except after notice to the Government Pleader on behalf of the

State. This is merely to safeguard the interests of the State to enable it to apply by way of an application for payment out of the sum. Also it may

be noted that the application contemplated under Sub-rule (2) of Rule 12 is one in the suit which has been instituted in forma pauperis. Rule 14

only provides for a special remedy for the State, namely, that the State can recover the court-fee due from a person or property liable for payment

as if it were an arrear of land revenue But this remedy is without prejudice to any other remedy. It cannot, therefore, be said that merely because

the State could recover under the provisions of the Revenue Recovery Act, therefore, it had no right to apply'' by an application for payment out.

Nor for that same reason can it be said that if the Revenue Recovery Act is not resorted to, the only other available mode of recovery is by

executing the decree. As a matter of fact, though under Rule 10 of Order 33, the Court is required to calculate the amount of court-fees which the

pauper plaintiff would have to pay if he had not been permitted to sue in forma pauperis, and the decree may order the party liable to pay the

court-fee, the State itself is not a party to the decree. All that Rule 13 of Order 33 says is that all matters arising between the State Government

and any party to the suit under Rule 10, Rule 11, Rule 1 i-A or Rule 12 shall be deemed to be questions arising between the parties to the suit

within the meaning of Section 47. In any case, in our view, the mode of recovery by the State of court-fee is not confined either to the Revenue

Recovery Act or the execution of the decree.

We are inclined to think that the! principle of Manickam Chettiar Vs. The Income Tax Officer and Another, , will apply to recovery of court-fee

payable in pauper suits. Though that was a case of an application by the Income Tax Department to recover Income Tax by filing an application

for payment out from funds in Court to the credit of the assessee, the principle in that case is capable of wider application. The learned Chief

Justice in that case observed at page 357:

Here, the Crown is entitled to the money in Court... there is no question about this--and asks the Court to pay it out. The right to payment being

indisputable justice requires that it should be paid out to the Crown and formal application for payment has been made. It seems to me that both

right and convenience demand that the Court should exercise its inherent power.

The application there, was made u/s 151 of the Code of Civil Procedure. Another learned Judge, Muckett, J., in the same case, agreeing with that

view, stated that it should be remembered that the Court held the money for the purpose of paying it to the person entitled to it. Varadachariar, J.,

in that case, though felt doubts whether from the mere Crown priority the right to apply for payment out by way of application could be spelt out,

the learned Judge did not think his doubts were so strong as to enter a dissent. It should be taken, therefore, as well settled that so far as this Court

is concerned where there is a fund lying to the credit of a suit and the State is entitled to payment of a sum from the party liable, it could well apply

for payment out by way of an application. This proposition would particularly apply to a case where the State can claim priority or a statutory first

charge in respect of the amount of which it seeks payment out.

Bat the question is whether an application invoking the inherent power of the Court u/s 151 of the CPC for payment out is governed by Article

181 of the Limitation Act, 1908. In terms, Section 151 of the Code does not confer on the Court any power as such. It merely declares the

inherent power of the Court which undoubtedly exists and the power is not limited or affected by anything in the Code in order to make such

orders as may be necessary to meet the ends of justice or to prevent abuse of process of Court. It is Well established by now that an application

invoking such inherent power is not one made under the Code of Civil Procedure. Sha Mulchand and Co. Ltd. (In Liquidation) Vs. Jawahar Mills

Ltd., though one of an application u/s 38 of the Companies Act and not one under the Code, the principle deducible from it is that Article 181 of

the Limitation Act would be inapplicable to any application which is not made under the Code. Bombay Gas Co. Ltd. Vs. Gopal Bhiva and

Others, , related to an application made u/s 33-C(2) of the Industrial Disputes Act and here again the principle was applied that because it was not

an application under the Court, therefore, Article 181 of the Limitation Act would not be attracted. It is true that the application in this case was

made u/s 151 of the Code. Even so, it is not an application under the Code. This has been held by the Supreme Court in Manohar Lal Chopra Vs.

Rai Bahadur Rao Raja Seth Hiralal, . It observed:

These observations have no bearing on the question of the Court exercising its inherent powers u/s 151 of the Code. The Section itself says that

nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Code to make orders necessary for the ends of justice.

In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise

affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice

between the parties before it.

It is for this reason Annada Prasad Mitra Vs. Sushil Kumar Mandal, , held that to an application u/s 151 of the Code limitation would not be

applicable under Article 181 of the Limitation Act. This view has been followed in Bhuyan Shyam Sunder Mohapatra and Another Vs. Ch.

Nilakantha Das and Others, , and Pooranchand Mulchand Jain Vs. Komalchand Beniprasad Jain, . In the last of these cases, the earlier decisions

were noticed and it was held:

Section 151 does not deal with any application nor does it lay down procedure for any application. It is a provision recognising the inherent power

of the Court to act ex deblto justitiae. An application invoking this power is not one which a party is required to make under any provision of the

Code for setting in motion any machinery of the Court. Therefore it is not governed by Article 181 or Article 163 or any other Article of the

Limitation Act.

We find ourselves in entire agreement with this view.

Before leaving this case, we may mention that Appayya v. The Collector of Vizagapatam ILR (1882) Mad. 155, has been strongly relied on

which held that an application u/s 411 of the CPC to recover the amount of court-fee from a party ordered by the decree to pay the same was

subject to the provisions of Article 178 of the Indian limitation Act. It is not necessary to decide in this case whether the State is entitled to

exemption from the provisions of the Limitation Act relating to applications though we may observe that obviously the State would be bound by the

provisions of the Limitation Act where it is applicable to suits or applications made by it. But where an application has been made not under the

Code but invoking the inherent power of the Code, no question of limitation can arise. This is not because the State is not bound by the Limitation

Act but because an application u/s 151 of the Code is not subject to any of the provisions of the Limitation Act for the reasons we have already

mentioned. The appeal is therefore, dismissed with costs.