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2022 Supreme(Ker) 185
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.Somarajan, J.
Manalil Devi(Died) , D/O.Kalliani and Ors. – Petitioners
Versus
Pooveri Nanu, S/O. Kelappan and Ors. – Respondents
RFA NO. 212 of 2017
Decided On : 10-03-2022
Advocate Appeared:
For the Petitioner: M/s. B. Krishnan, R.Parthasarathy
Point of Law: A decree would not normally operate against the property held by the legal heirs/legal representatives in their individual capacity.
Headnote:
Civil Procedure Code, 1908 - Rule 14 of Order XXXIII- Payment of court fee- Whether the additional appellants, who are impleaded as the legal heirs of deceased indigent appellant, are liable to pay the required court fee at the appellate stage and whether they can be exonerated from the said liability on account of the earlier permission granted to appeal as indigent.
Finding of the Court:
Death of an indigent appellant after the disposal of the appeal, the property and the assets of the deceased alone would stand liable to answer the recovery under Rule 14 of Order XXXIII C.P.C. and in that case it is not permissible to extend the liability over the property held by the legal heirs/legal representatives in their individual capacity. But the legal position would be different when they came up in the suit or appeal on the death of indigent plaintiff or appellant and in that situation, they are bound to meet the liability of payment of required court fee for maintaining the suit/appeal. Necessarily, their individual property would also be liable for payment of court fee. A decree would not normally operate against the property held by the legal heirs/legal representatives in their individual capacity. But that principle cannot be extended when a right of appeal or right to proceed with the suit or appeal was exhausted by the legal heirs or legal representatives on the death of indigent plaintiff or indigent appellant.
ORDER :
An initial issue pertaining to payment of court fee came up for consideration as to whether the additional appellants, who are impleaded as the legal heirs of deceased indigent appellant, are liable to pay the required court fee at the appellate stage and whether they can be exonerated from the said liability on account of the earlier permission granted to appeal as indigent.
2. The original appellant was allowed to appeal as an indigent person by granting permission under Order XXXIII C.P.C. after conducting an enquiry. During the course of appeal, the original appellant passed away. The legal heirs were brought on record as additional appellants at their instance. But they did not pay the required court fee in the appeal on the reason that permission was granted to the deceased indigent appellant and hence, they will stand exonerated from the said liability and the court fee payable on conclusion of appeal under Rule 14 of Order XXXIII C.P.C. can be extended only against the property left out by the deceased indigent appellant. It is further submitted that their individual property cannot be held liable for recovery even under Rule 14 of Order XXXIII C.P.C.. It is not permissible for this court to change the status of the appeal once it was allowed to be continued as an indigent appeal.
3. On the other hand, it is submitted by the learned counsel for the respondent that the permission to sue or appeal as an indigent person is subject to the application of Rule 9 of Order XXXIII C.P.C. and the court at any stage can withdraw the permission granted on satisfaction of the requirements under clause (a), (b) or (c) annexed to the said Rule.
4. It is by virtue of Rule 11 of Order XXII C.P.C., all the provisions therein are made applicable to an appeal by substituting the words “the appeal, appellant and respondent” in the place of “suit, plaintiff and defendant”. Necessarily, in so far an appeal is concerned, the “abatement of suit” should be read as “abatement of appeal” and “survival of right to sue” should be read as “survival of right to appeal”. Rule 9 of Order XXII bars fresh suit or fresh appeal, where a suit or appeal abates under that provision. But sub-rule(2) to Rule 9 makes it clear that the plaintiff (the appellant) or the person claiming to be the legal representative of a deceased plaintiff (appellant) or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal. When the suit/appeal abates, a fresh suit/appeal either by the legal heirs or legal representatives are barred under Rule 9 of Order XXII C.P.C. (subject to the application of sub-rule (2)) and in that event Rule 11 A of Order XXXIII C.P.C. would come into play, which is extracted below for reference:
“Where the suit abates by reason of the death of the plaintiff or of any person added as a co-plaintiff, the Court shall order that amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person shall be recoverable by the State Government from the estate of the deceased plaintiff.”
(emphasis supplied)
5. But this Rule would come to play only when the suit or appeal abates on account of non-impleadment of legal heirs or legal representatives. The legal position would be different when the legal heirs were substituted in the place of deceased indigent plaintiff or indigent appellant. The right to proceed with the suit/appeal should be understood with the liability thereof for payment of required court fee since it is co-extensive with the survival of right of appeal or the suit as the case may be. But it may not have any application unless the proceedings are instituted as indigent under Order XXXIII C.P.C. There may not be any change in the legal position whether the appeal was preferred by the legal heirs/legal representatives after the death of the indigent person or they themselves substituted in the place of original decease
