ORDER
1. One N. P. Venkatachala Mudaliar instituted a suit on the file of the Original Side of this Court against the Imperial Tobacco Company of India Limited for recovery of sum of Rs. 1,46,000/- with interest at 6%. When he presented the plaint, he also sought permission to institute the said proceedings in forma pauperis and filed an application No. 187 of 1960 seeking leave to institute the proceedings in forma pauperis under the provisions of Order XXXIII, Rule 1, C.P.C. read with Order XIV, Rule 10 of O.S. Rules. Learned Master of this Court appeared to have passed an order dated 27-7-1960 declaring the said Venkatachala Mudaliar as indigent person and leave was granted to him to sue as a pauper.
2. The suit was numbered as C.S. No. 114 of 1960 (pauper). During the pendency of the suit he appeared to have died on 28-1-1961 leaving behind him the petitioners, namely, V. Muthukumaran and V. Sathyanarayanan and others as his heirs. An Application No. 637 of 1961 had been filed for bringing the L.Rs. on record and the said application appeared to have been allowed and they were impleaded as plaintiffs. On trial the suit was dismissed by judgment dated 6-3-1963. While dismissing the suit, learned single Judge however did not order costs, but required the plaintiffs in the suit to pay the Court-fee due to Government. For the recovery of the amount of Court-fees this Court appeared to
have caused a copy of the decree to be forwarded to the second respondent-Collector of Madras pursuant to the provision adumbrated under Order XXXIII, Rule 14, C.P.C.
3. The second respondent-Collector did not appear to have proceeded further in the matter with the diligence and in the year 1984, the third respondent-the Tahsildar, Purasa-walkam-Perambur Taluk, Clements Road, Madras-7 appeared to have required the petitioners by letter C-1/15826/78 dated 7-4-1984 to pay a sum of Rs. 10,950/- failing which the amount would be recovered from them under the provisions of the Tamil Nadu Revenue Recovery Act II of 1864 (hereinafter referred to as ‘the Act’).
4. On receipt of the said letter the petitioners caused a legal notice to be given through their counsel dated 24-5-1984 disputing their liability to pay the amount on three grounds, namely, (1) They had been impleaded as L.Rs. of N.P. Venkatachala Mudaliar, who instituted the suit in forma pauperis and consequently they cannot be mulcted with liability for the payment of Court-fees either from their person or out of the properties belonging to them and if at all such recovery is permissible from out of the estate available in their hands; (2) The claim is barred by limitation in the sense of more than 12 years lapse since the passing of the decree, and (3) Even otherwise the laches on the part of the authorities concerned since all were sleeping for well over a period of about two decades is certainly a factor which ought to be taken into account in the process of arriving at a decision. Even after the receipt of notice by respondents 2 and 3 they made an attempt to initiate proceedings under the Act to attach their personal properties for the amount due by way of Court-fees. The petitioners, therefore, resorted to the present action praying for issuance of a writ of mandamus defarring (from) taking (action) against petitioners under the Act pursuant to the proceedings in C2/15826/78 dated 7-4-1984.
5. Learned counsel appearing for the petitioners would raise three contentions :
i) The petitioners, after all having been impleaded as L.Rs. of the deceased plaintiff N.P. Venkatachala Mudaliar, who instituted the suit as a pauper, cannot at all be mulcted with liability for the payment of Court-fees due by the dismissal of the suit from out of their person or properties belonging to them and if at all the estate belonging to late N.P. Venkatachala Mudaliar alone if any available in their hands may be proceeded for the realisation of the Court-fees due.
ii) The proceedings for the recovery of the Court-fees due by resorting to the provisions of the said Act is a mode of execution of the decree and since such proceedings had been initiated far beyond the period of 12 years from the dismissal of the suit, the same is barred by limitation as per the sanguine provisions adumbrated under Art. 136 of the Limitation Act.
iii) Even otherwise there is lethargy and inaction on the part of the authorities concerned in not resorting to take action for the recovery of the Court-fees due for well over a period of two decades. Such lapses on their part will denude them of their of their right to recover the dues if there is any.
6. Learned Additional Government Pleader would however repeal those submissions.
7. There is no pale of controversy that this suit had been initially instituted by N.P. Venkatachala Mudaliar on the Original Side of this Court for the recovery of certain dues payable to him by the Imperial Tobacco Company of India Limited and he had been allowed to sue as a pauper. The other admitted fact is that while the suit was pending he died and the petitioners herein and others had been impleaded as his L.Rs. The suit was allowed to be proceeded and the same got dismissed by judgment dated 6-3-1963. While dismissing the suit, learned Judge, though not ordered for costs required the plaintiffs in the suit to pay the Court-fees due to the Government and the Court-fees so ordered to be recovered from the plaintiffs was sought to be recovered for the first time in 1984 by the impugned proceedings.
8. The main question that falls for determination from the rival submissions of either counsel is as to whether the Court-fees due is recoverable from out of the person or personal properties of the petitioners herein or from the estate of the deceased plaintiff N.P. Venkatachala Mudaliar available in their hands by resorting to initiation of proceedings under the Act.
9. In understanding the implications of such a question, reference has to be necessarily made to the sanguine provisions adumbrated under Order XXXIII, Rule 11, C.P.C. There is a Madras amendment to the said Rules and such amended rule dealing with “Procedure where pauper fails” in couched in the following terms :
“Where the plaintiff fails in the suit or is dispaupered or where the suit is withdrawn or where part of the claim is abandoned or where the suit is dismissed –
a) because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay the Court-fees or postal charges (if any) chargeable for such service, or
b) because the plaintiff does not appear when the suit is called on for hearing, the Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the Court-fee and in the case of abandonment of part of the claim the proportionate Court-fee, which would have been payable by the plaintiff if he had not been permitted to sue as a pauper.
In cases where the plaintiff is dispaupered the Court may, instead of proceeding under the previous paragraph, order the plaintiff to pay the requisite Court-fee within a time to be fixed by it and in default dismiss the suit and make an order for the payment of Court-fee as in the previous paragraph.
“Where the Court finds that the suit has been instituted unreasonably or improperly by a next friend on behalf of a minor plaintiff on a cause of action which accrued during the minority of such plaintiff, the Gourt may order the next friend to personally pay the
Court-fee”.
10. From the careful perusal of what has been extracted above, it is rather crystal clear that where the plaintiff fails in the suit in the sense of the suit meritting dismissal, the Court shall order the plaintiff or any other person added as co-plaintiff to the suit to pay the Court-fees. In the instant case the petitioners had been added as co-plaintiffs in the suit consequent on the death of their father N.P. Venkatachala Mudaliar as his Legal Representatives. In such a situation to contend that the petitioners are not liable to pay the Court-fees either personally or from out of their properties and if at all they are liable only to the extent of the estate of the deceased available in their hands as contended by learned counsel for the petitioners cannot at all be countenanced.
11. Order XXXIII, Rule 14, C.P.C. provides for the recovery of the amount of Court-fees. It reads as under :
“Where an order is made under Rule. 10, Rule 11 or Rule 11A, the Court shall forthwith cause a copy of the decree or order to be” forwarded to the Collector, who may, without prejudice to any other mode of recovery, recover the amount of Court-fees specified therein from the person or property liable for the payment as if it were an arrear of land revenue”.
12. From the provision as extracted above, it is clear that the Court-fees payable is recoverable as if it is an arrear of land revenue without prejudice to any other mode of recovery. Under Article 136 of the Limitation Act the period prescribed for execution of any decree other than a decree granting a mandatory injunction or order of any civil Court is 12 years when the order or decree becomes enforceable. As adverted to earlier the suit in C.S. No. 114 of 1960 on the file of this Court was dismissed by judgment dated 6-3-1963 requiring the plaintiffs in the suit to pay the Court-fees due to the Government. Twelve years calculated from the said date of dismissal of the suit, the execution proceedings ought to have been taken on or before 5-3-1975. Of course no proceedings for execution
of the decree had been taken before the civil Court.
13. But what had been done in this case is to recover the Court-fees dues payable by the institution of the proceedings under the said Revenue Recovery Act. As already stated Rule 14, Order XXXIII, C.P.C. makes it abundantly clear that the recovery of Court-fees is permissible by resorting to the provisions of the said Act without prejudice to any other mode of recovery. At this juncture it has to be borne in mind that under the said Act there is no provision at all prescribing any period of limitation for the recovery of moneys to be realised as if such recovery is an arrear of land revenue. The fact that there is no period of limitation prescribed under the said Act does not mean the authorities can sleep over the matter for any length of time as in the instant case for about more than two
decades in seeking to recover such dues.
In such circumstance the recovery attempts made therefor by the authorities concerned has to face dismal failure purely on the ground of laches on their part.
14. In this view of the matter, the writ petition deserves to be allowed and is accordingly allowed. Rule Nisi issued is made absolute. There will, however, be in the circumstances of the case, no order as to costs.
15. Petition allowed.