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1937 Supreme(SC) 32
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD MAUGHAM, SIR SHADI LAL, AND SIR GEORGE RANKIN.
VAISHNO DITTI - Appellant
Versus
RAMESHRI - Respondents
On appeal from the Court of the Judicial Commissioner, North-West Frontier Province.
Decided On : Mar. 18. 1937.
Solicitors for appellant:Hy. S. L. Polak & Co. Solicitors for respondents: Stanley Johnson & Alien.
Section 11 of the Court Fees Act allows suit dismissal only for non-payment of fees related to mesne profits ascertained during execution. In other account-based suits, non-payment merely postpones execution. Parties not named in the formal decree or appellate proceedings cannot be held personally liable.
Headnote:(A) Court Fees Act, 1870 - Section 11 - Non-payment of additional court-fee in suits for accounts - Distinction between first and second paragraphs of Section 11 - In cases falling under the first paragraph, non-payment of the balance of court-fee merely postpones the date on which the decree can be executed - The second paragraph, which empowers the court to dismiss the suit if additional fees are not paid within a fixed time, is applicable only where the amount of mesne profits is left to be ascertained in the course of the execution of the decree - Where the account is not for mesne profits and the amount is not ascertained during execution, the court has no jurisdiction to dismiss the suit for non-payment of additional fees.
(B) Civil Procedure Code - Preliminary Decree - Proceedings under a preliminary decree for accounts to obtain a final decree for money are proceedings in the suit and are not proceedings in execution in the technical sense of the word as used in the Code.
(C) Liability of Parties - Parties not named in the formal decree or as parties to the appeal cannot be held personally liable at a later stage, particularly when they were not parties to the subsequent appellate proceedings and the record does not support such liability.
Facts of the case:
A plaintiff was granted a decree for a share of property and rendition of accounts. Upon the determination of the amount due, the sum was found to exceed the value on which the court-fee had been paid. The trial court directed the payment of the balance court-fee and subsequently dismissed the suit for failure to pay the additional amount, purporting to act under the second paragraph of Section 11 of the Court Fees Act. Additionally, the plaintiff sought to establish the personal liability of certain guardians for the sums due and costs.
Findings of Court:
The court found that the account in question was not for mesne profits ascertained during execution, and therefore, the second paragraph of Section 11 did not apply. The dismissal of the suit was without jurisdiction and unreasonable, as no peremptory order had been made. Regarding the guardians, they were not named in the formal decree nor were they parties to the appeals, making it impossible to impose personal liability upon them at this late stage.
Issues: Whether the suit could be dismissed for non-payment of additional court-fees under the second paragraph of Section 11 of the Court Fees Act when the account was not for mesne profits ascertained during execution; and whether parties not named in the formal decree or appellate proceedings could be held personally liable.
Ratio Decidendi: The power to dismiss a suit for non-payment of additional court-fees under Section 11 of the Court Fees Act is restricted to cases where mesne profits are ascertained during the execution of a decree. In other account-based suits, non-payment only postpones execution. Furthermore, a suit should not be dismissed for a minor fee deficit without a peremptory order or evidence of wilful disregard. Personal liability cannot be created by amending a decree to include parties who were not parties to the appellate proceedings.
Result: Appeal allowed in part; order dismissing the suit set aside; appeal dismissed as against the guardians.
Legal Category Hierarchy
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practice and procedure
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court fees
- payment of fees
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execution of decrees
- preliminary and final decrees
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court fees
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civil law
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property law
- inheritance
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guardianship
- personal liability of guardians
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property law
Judgement
Consolidated Appeals (No. 66 of 1935), the first from an order of the Court of the Judicial Commissioner, North-West Frontier Province (April 8, 1933), affirming a decree of the Senior Subordinate Judge at Peshawar (October 20, 1932) ; the second, by special leave, from an order of the Judicial Commissioner (April 8, 1933) affirming an order of the Subordinate Judge (October 27, 1932).
Under an Order in Council, dated July 30, 1928, made in Appeal No. 84 of 1927 ( Vaishno Ditti v. Rameshri (( 1928) L. R. 55 I. A. 407.)), a decree of the District Judge at Peshawar was restored with modifications, and the present appellant, Musammat Vaishno Ditti, was thereby granted a decree for a quarter share of certain movable and immovable property and for rendition of accounts. On the matter being made over to the District Judge he directed on October 8, 1930 (inter alia), that a commissioner should take the accounts and report. On June 27, 1932, the commissioner reported that the appellants share of rents, profits, etc., was Rs.65,243. The parties having filed objections to the report, the Senior Subordinate Judge dealt with them and on August 17, 1932, increased the amount due to the appellant to Rs.71,493. The appellant had valued her claim at Rs.44,250, and had paid court-fee on that sum only, and accordingly on fixing the increased sum due to her the Subordinate Judge had directed her to " put up prayer by 29th and pay balance of court-fee” On August 29, 1932, the matter was adjourned to October 20, and on that date an Acting Senior Subordinate Judge, purporting to act under the second paragraph of s. 11 of the Court Fees Act (VII. of 1870), dismissed the appellants suit on the ground that by that date she had not paid the additional court-fee.
An appeal to the Judicial Commissioner was dismissed.
The facts and the relevant statutory provisions appear from the judgment of the Judicial Committee.
1937. Feb. 25, 26. L. P. E. Pugh and J. Nissitn for the appellant.
De Gruyther K.C. and J. M. Parikh for the respondents.
[In addition to the authorities cited in the judgment of the Judicial Committee reference was also made to Faizullah Khan v. Mauladad Khan (( 1929) L. R. 56 I. A. 232.) and Shankar Appaji v. Gangaram Bapuji . (( 1928) I. L. R. 52 B. 360, 364.)]
March 18. The judgment of their Lordships was delivered by Sir George Rankin. In this case two appeals have been consolidated. Both arise out of proceedings which followed upon an Order in Council, dated July 30, 1928, made in Appeal No. 84 of 1927 [ Vaishno Ditti v. Rameshri . (( 1928) L.
R. 55 I. A. 407.)] They are brought by Musammat Vaishno Ditti, who on April 10, 1923, filed her suit in the Court of the District Judge of Peshawar to establish her right to a quarter share in the property left by her maternal grandfather, Balmokand, and his widow, Musammat Kauran. Balmokand had died in 1906 leaving a widow and five daughters, of whom one (Ramo) died without issue, so that her share accrued to the others equally. The widow had died in 1909.
The suit having succeeded before the District Judge was dismissed on appeal by the Judicial Commissioner, but by the Order in Council already mentioned the decree of the District Judge was restored " subject to the following modifications (a) that the appellant be granted a decree for a one-fourth share of the movable and immovable property, and (b) a decree for rendition of accounts as from June 23, 1910, with respect to her share with rents, profits and interest with costs here and in the lower Appellate Court." The family belong to the community of Arora Sikhs. The original and substantive dispute was between the plaintiff and her mothers three sisters. It turned upon the fact that the plaintiffs mother, Nikko (who had died in 1911), had been married in the lifetime of her father, Balmokand. For this reason, it was contended, she took no share by inheritance, her sisters being preferential heirs. The matter was complicated by the
