Gayanoda Bala Dassee v. Butto Kristo Bairagee

1. In this case the plaintiff sued as a pauper and obtained a decree, which, directed, amongst other things, that certain property the subject-matter of the suit should he conveyed to her by the defendants and it then proceeds to direct that the taxing officer do certify the amount of Court-fees, which would have been paid by the plaintiff, if she had not been permitted to sue as a pauper and to tax the plaintiffs other costs of suit, and it was further ordered and decreed that the defendant should pay the amount of Court-fees to be certified as aforesaid to the Government Solicitor and to the plaintiff the other costs of suit. It was further declared that the amount of the Court-fees certified as aforesaid, should form a first charge on the house and premises to he conveyed to the plaintiff.

2. It appears that the property directed to be conveyed has been so conveyed, and thereafter the plaintiff applied for attachment of certain other premises belonging to the defendants, and having attached this property she obtained the usual order for sale and the property was sold and the sale-proceeds ordered to be paid into Court, to remain there subject to the further order of the Court. There is now in Court standing to the credit of this suit the sum of Rs, 999-1-8. On the 12th January the attorney for the plaintiff on notice to his client, and without notice to the Government Solicitor or any other party to the suit, made an application for an order for payment to him of the amount realised in execution from the defendants, alleging that, if the amount was not paid to him or his client, he would be unable to realise his in pocket and out of pocket costs from the plaintiff.

3. In the course of drawing up this order, notice of the application was given to the Government Solicitor by the Regis-trar, (I presume, though it does not appear on the petition, that this was done under the direction of the Court) and in consequence of that communication the present petition was filed by the Government Solicitor asking that the amount of the Court-fees certified as due and payable by the defendants to the Government Solicitor in terms of the decree should be paid in the first instance and in precedence to all other claims out of the moneys in Court realised by the sale of the defendants property. Notice was given to the plaintiff of this application, but the plaintiff's attorney has only appeared and has urged his right under the order in question to be paid the amount of his taxed costs out of the amount in Court. It is to be observed that the claim of the plaintiff's attorney is to a certain extent adverse to his client, because to the extent that the claim of the Government Solicitor for the Court-fees is paid out of the moneys used in Court the plaintiff will be benefited, inasmuch as to that extent the charge upon her property, the subject-matter of the suit, will cease to have any operation. The question on this application is whether the Government Solicitor is entitled to claim precedence. There is no doubt that the Court-fees form a Crown debt and under ordinary circumstances the principle would apply that the Crown would be entitled to precedence in payment of this debt over all other creditors. That is a principle recognised by the Courts of this country ever since the decision of the Bombay Court in the case of Secretary of State v. The Bombay Landing and Shipping Company, Ld. (1886) 5 Bom. H.C. (O.C.J.) 23. It has been contended that Section 411 of the Civil Procedure Code has modified the right of the Crown in this respect. That section provides that, if a pauper

"plaintiff succeed 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, and such amount shall be a first charge on the subject-matter of the suit and shall also be recoverable by the Government from any party ordered by the decree to pay the same, in the same manner as costs of a suit recoverable under this Code."

The terms of this section are identical with the terms of the section of the old code of 1859, except that the old Code did not provide that the Court-fees should be a first charge on the subject-matter of the suit, and it is possible, as is suggested, that these words were introduced into the section by reason of. the decision of the Bombay case of Gunput Putaya v. The Collector of Kanara ( 1875) I.L.R. I Bom 7. That was a decision under the section of the old Act, which, as I have already said, did not provide that the amount should be a first charge on the subject-matter of the suit. Notwithstanding the omission of those words the Court held that the Crown had the right to proceed by way of execution against the property in exercise of its prerogative. Accordingly when the new Act of procedure was passed these words were introduced into the section. It is suggested that the section as now framed restricts any enforcement of the right to recover the Crown had to the method described in the section, that is to say, that the Crown in order to recover the Court-fees must proceed to enforce the charge on the subject-matter of the suit, and that, as regards other properties of the judgment-debtor, the Crown has only the right of a private judgment-creditor and can only proceed to realise its claim in the usual method by attachment and sale. I think, however, I must hold that the section must be read as an enabling section, and though it indicates the manner, in which the Crown may proceed to realise the debt, it does not preclude the Crown or its representatives from urging its prerogative and insisting on its right to precedence over all other creditors. That view of the right of the Crown has been adopted in several oases since the decision of the Bombay case. Gunput Putaya v. The Collector of Kanara ( l875) I.L.R. 1 Bom. 7, and some of these decisions are as follows: Gulzarilal v. The Collector of Bareily ( 1878) I.L.R. 1 All. 596. The Collector of Moradahad v. Muhammad Daim ( 1879) I.L.R. 2 All 196, and a similar question was considered in Ram Das v. The Secretary of State ( 1896) I.L.R. 18 All. 419. and Bell v. the Municipal Commissioners ( 1902) I.L.R. 25 Mad. 475.

4. The question then is, if the Crown has the prerogative of precedence, whether there is any necessity or obligation on the part of the Crown to attach the sum in Court or to make an application to attach this sum or other property of the debtor. It seems to me that, inasmuch as the Crown represented by the Government Solicitor is entitled to precedence over all other creditors, no necessity exists for attachment of the fund before claiming payment. The Court is bound by Section 284 of the Cade to pay the proceeds of the attached property to such parties as are entitled under (he decree to recover the same, and inasmuch as I must hold that the Crown is entitled to be paid the amount of the Court-fees in precedence to the plaintiff by whom the amount in Court was realised, it follows that the Crown is entitled to an order for payment of its dues in priority out of that sum. I must therefore mate an order in terms of the petition. The Crown is entitled to add the costs of the present application to its claim. The balance of the fund in Court will be paid to Bhuban Mohan Dass in terms of the order already made, to which I have referred, and he may add his costs of this application to his claim. There will be a direction for the taxation of his costs as between attorney and client.