1987 Supreme(MP) 602

IN THE HIGH COURT OF MADHYA PRADESH
B.C. Varma, J.
Union of India - Petitioner
Vs.
Smt. Damyanti Bai - Respondent
C.R. No. 583 of 1985 (J)
Decided On : 17-11-1987

Headnote:(1) Res judicata – principles apply to execution proceedings.

       (2) Civil Procedure Code, 1908 – O.33, R.10 – pauper suit decreed with costs – costs become recoverable from defendant even if no specific direction is given in decree.

        Short Note

       The decree – holder/non – applicant filed a suit as pauper. The suit was for recovery of an amount of Rs. 1,29,105.37 paise. The suit was decreed for an amount of Rs. 24,000/ – and interest. Later, the amount of Court – fee payable on the suit claim, i.e. Rs. 9,980/ – was recovered by the State Government from the decree – holder. When this was done, the decree – holder made an application for a direction to the applicant to pay this amount to the decree – holder. It appears from the record that the judgment – debtor raised an objection to this prayer of the decree – holder and has been decided by the executing Court by its order dated 2 – 12 – 1983 whereby the objection so raised by applicant judgment – debtor to pay this amount of Rs. 9,980/ – being equivalent to the Court – fee payable on the suit claim has been rejected. That order appears to have become final. Thereafter when the decree – holder started execution proceedings to recover the amount from the applicant a similar objection was raised and has been rejected by the impugned order.

       2. Held: Shri R.K. Samaiya, counsel for the non – applicant rightly pointed out that once the objection now sought to be raised has been decided by the executing Court, a similar objection should not be permitted to be agitated again. The submission is that earlier order dated 24 – 12 – 1983 deciding the issue now sought to be raised operates res judicata. Shri Sinha, appearing for the applicant, did not dispute that the principles of res judicata also applies to the execution proceedings. Therefore, the order directing the applicant to pay the decretal amount to the non – applicant decree – holder must be upheld and no objection should be permitted to be agitated again.

       3. That apart, what I find from the copy of the judgment placed by the learned counsel for the applicant before the Court, is that while partly decreeing the non – applicant's suit the applicant has been directed to pay the entire costs of the suit. This part of the judgment has not been attacked so far nor was any application was made to the trial Court even for review of this order. That again has become final. Shri Sinha, however urged that in view of rule 10 of order 33 of the Code of Civil Procedure, the costs could be recovered only if the suit succeeds and, in the present case, the suit has only partly succeeded to the extent of Rs. 24,000/ – . It is true that the suit has not fully succeeded but then judgment show that inspite of the partial success the full cost of the suit which included the amount of Court – fee paid or payable by the non – applicant/decree – holder. It appears that the applicant failed to get the order amended either by filing appeal, revision or review application. Shri Sinha, however, urged that rule 10 of order 33 only permits the State Government to recover that amount and, therefore, non – applicant/decree – holder has no authority to proceed to recover the amount of Court – fee which amount has subsequently been recovered from him. The matter is squarely covered by the decision in M.P.A. No. 343 of 1974, M.P. State Road Transport Corpn. decided on 10 – 10 – 1977 (1978 M.P.L.J. Short Note 3). The learned Judge who decided that case, relied upon decisions in Parasmall v. Jayalakshmma (AIR 1962 Mys. 201) and Ram Bai v. Suraj Karan (AIR 1967 AP 383). It has been held that 'where the Court on the success of a pauper plaintiff directs the costs of plaintiff to be borne by defendant, the Court – fees payable by plaintiff becomes costs recoverable from defendant though no specific direction is given in the decree under order 33, rule 10, Civil Procedure Code. I could not be persuaded to take a contrary view. I am in respectful agreement with the view so taken in the aforesaid decision. I, therefore,

       see no reason to agree with the learned counsel for the applicant that the amount could be only recovered by the State Government. In the present case, the non – applicant/decree – holder has paid the amount to the State Government and has, therefore, become entitled to recover this amount from the applicant/judgment – debtor even though that was not mentioned in Schedule of costs prepared along with the decree. 1978 MPLJ SN 3, AIR 1962 Mys. 201 and AIR 1967 AP 383 relied on. Revision dismissed.