Decided on March 25,1953



Panchapakesa Ayyar, J. - (1.) This is an interesting case where the State of Madras has appealed against the order of the Principal Subordinate Judge, Devakoltai, in E. P. No. 169 of 1949, in O. S. No. 94 of 1946, dismissing the execution petition filed by the Government for attaching the defendants' moveables on the ground that the Government was not a party to the decree and could not execute it, and that, even if it was entitled to execute it, it could not be allowed to do so, under Section 11 of the Cour-fees Act, till the additional court fee of Rs. 1552-7-0 due on the amount decreed to the plaintiff under the compromise decree was paid. The respondents in this civil miscellaneous appeal (the defendants-judgmentdebtors) are all absent and have not been represented by counsel. So, the learned Government Pleader has been left to argue the intriguing point of law involved alone, without opposition or rival. Still, as it is the court's duty to consider, even in such coses, whether the appellant can have the relief, he wants, by getting the lower court's order set aside and being permitted to execute the decree regard-ing the additional court fee unconditionally, I have considered the matter fully and am convinced that the lower court's order, regarding the non-executability of this decree by the Government, is correct, as the Government have not proved their right to execute it, let alone their right to execute it without even paying the deficit court fee, under Section 11 of the Court-fees Act.
(2.) The facts were briefly these: The plaintiff, Meyyammal Achi, had brought a suit for accounts regarding a deposit in the defendant's firm in Kuala Lampur (Malaya) against five defendants, the 1st defendant, Ramaswami Chettiar alone being a major, the others being his minor sons. She had valued the suit at Rs. 5500 and had paid a court-fee of Rs. 442-7-0. Finally, the parties compromised the matter, and, on 16-9-1948, the plaintiff got a compromise decree for Rs. 40,309-6-0 (in Indian currency) to be paid on or before 1-12-1951, at Kuala Lampur in instalments. If the defendant did not pay the amount as per compromise, the plaintiff was permitted under the compromise to proceed against the defendants' properties in Kuala Lampur, Bentre, and headquarters (Oor) by way of execution. Clause 6 of the compromise decree runs as follows: "That the plaintiff do pay to the Government, before executing this decree, a sum of Rs. 1552-7-0 the additional court-fee due on the amount allowed to the plaintiff as per compromise, over and above the court fee paid on the valuation of the claim in the plaint." Mr. T. N. C. Srinivasavaradachariar was the Judge who passed the compromise decree. He was also the Judge who dismissed the Government's execution petition.
(3.) It is urged by the learned Government Pleader that the cunning plaintiff and the defendants (both belonging to the Nattukottal Chettiar caste) colluded and resolved that the decree 'should not be executed' through court, and the defendant, paid the plaintiff, outside the court, some amount the exact amount not being known to the Government -- in full satisfaction of the decree and thus the parties cheated the Government of the Court-fee due to it under clause 6 and necessitated the filing of the execution petition by the Government.;

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