ORDER
J.B. Koshy, J.
1. Petitioner and second respondent had executed an agreement for the contract work of construction of 40 beded pacdiatric ward in Government Hospital, Perumbavoor. When the full amount was not paid, petitioner filed O.S. Nos. 612/92 and the decree is Ext. P1(a) which is as follows :
“For the reasons stated in the judgment the defendants are directed to pay an amount of Rs. 2,19,051/- together with interest at 12% per annum from the date of suit till realisation with cost failing which the plaintiff is allowed to realise the same from the defendants and their assets and a copy of the decree and judgment is to be sent to the District Collector for realisation of the Court fee.”
It is the case of the petitioner that in spite of the decree, the amount is not so far paid. At the same time, steps are taken for realisation of the court fee and Ext. P2 revenue recovery proceedings are taken. Petitioner filed the suit as an indigent person. So, when he succeeded in the suit the Court fee has to be recovered as provided under Order 33, Rule 10 of the Code of Civil Procedure (hereinafter referred to as the ‘C.P.C.’). Here, it is averred that decree amount with interest and cost was not paid by the defendant (State).
2. Under Order 33 , Rule 10 of C.P.C. it is provided as follows :
“10. Cost where an indigent person 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 an indigent person; 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 on the subject-matter of the suit.”
A direction that the defendant shall pay cost of the plaintiff imposes a liability on him to pay the Court fee payable to the Government. That is not affected by the further direction that judgment of the Court be sent to the District Collector for realisation of Court fee. Therefore, in this case, the amount of Court fee has to be recovered from the State (defendant) itself in view of the clear terms of the decree and recovery proceedings for the same cannot be taken against the petitioner (plaintiff). Hence, I set aside Ext. P2.
3. Defendant in the suit being the State, can deduct the Court fee payable and appropriate it towards the same and balance need be paid to the plaintiff. When that is done, plaintiff s obligation to pay Court fee is over as the State has appropriated the Court fee payable from the decreed amount. When suit is decreed with cost, Government is entitled loaprecedence in respect of Court fees and plaintiff is entitled only the balance. But, if Court fee has already been deposited by the State in pursuance of the decree or it was realised by the plaintiff in execution proceedings, it is for the State to recover that from that amount already deposited as it is the first charge on the decreed amount. State has not filed a counter affidavit to show that the decreed amount including Court fee was already deposited in Court or was realised by the petitioner . Therefore, the original petition is allowed without prejudice to the right of the State Government in recovering the same as provided under Order 33, Rule 10 of C.P.C.