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2012 DIGILAW 3550 (MAD)

Athreya Incorporations Rep by its Proprietor, Salem v. Emami Ltd, Kolkata

2012-08-13

G.RAJASURIA

body2012
Judgment :- 1. This Civil Revision petition is focussed as against the order dated 30.12.2009 passed by the learned Additional District Judge, Salem in returning the petitioner's application seeking directions for drafting of the decree without looking into the provision of Order 33 of the Code of Civil Procedure. 2. A 'resume' of facts, absolutely necessary and germane for the disposal of this civil revision petition would run thus: (i) The learned counsel for the revision petitioner would echo the cri de coeur of his client to the effect that the lower court despite setting the defendants exparte and passing thereafter the exparte judgment, did choose to observe thus in the exparte judgment: "The plaintiff is directed to pay the court fees within four weeks after write decree is to be drafted. Time for payment of suit amount 3 months." (extracted as such) (b) According to the learned counsel for the revision petitioner as per Order 33 Rule 10 of the Code of Civil Procedure, which is extracted here under: "Order XXXIII – Suits by indigent Persons Rule 10: Costs where [indigent person]* succeeds– Where the plaintiff succeeds 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 an [indigent person]; such amount shall be recoverable by the State Government from any party ordered by the decree to pay the same, and shall be a first charge on the subject-matter of the suit." [*substituted by Act 104 of 1976] would govern the situation; but the lower court without adhering to it, simply mandated that the decree itself shall not be drafted without collecting the court fee concerned. 3. Whereas the learned counsel for the first respondent/defendant would place reliance on their stand taken in C.M.A.No.3169 of 2011 that its application for setting aside the exparte decree under Order 9 Rule 13 of CPC was dismissed and as against which, CMA was filed and in such a case, the question of drafting decree would be a well neigh impossibility. 4. The point for consideration is as to whether the lower court was justified in passing such an observation in the exparte judgment extracted supra? 5. 4. The point for consideration is as to whether the lower court was justified in passing such an observation in the exparte judgment extracted supra? 5. Trite the proposition of law is that the court while disposing of the pauper suit can very well pass orders regarding court fee as contemplated under Order 33 Rule 10 of the Code of Civil Procedure; but the court has got no jurisdiction to impose the condition to the effect that court fee should be first collected and thereafter alone the decree should be drafted. 6. Hence, that much portion of the judgment dated 18.03.2008 passed in O.S.No.136 of 2007 alone shall stand set aside and the lower court is directed to prepare the decree in stricto sensu and issue copy to the party concerned. 7. With the above direction, this civil revision petition is disposed of. No costs.