NISHI KANTA DAS THAKUR Vs. PRAMATH NATH DAS

JUDGEMENT

(1.) This is an application under Section 115, Civil P.C., by defendants 19 and 19-Ka in an administration suit. The plaintiff instituted a suit against defendant 1 for the administration of the estate of his deceased father. The other creditors including the present petitioners were made defendants in the said suit. The petitioners proved that the deceased owed to them a sum of over Rs. 18,000. The claim was accepted as correct by the Court. Then a certain pleader of Dacca was appointed a Receiver. He collected a certain amount of money and deposited it in Court, whereupon the Court on 20 February 1937, directed distribution of dividends to the extent of 7 1/2 per cent. of their claims to the creditors whose claims had been proved. The Receiver then asked the creditors to take their dues after paying proper court-fees in Court. The petitioners stated in reply that they were not liable to pay court-fees on the entire claim, inasmuch as the estate of the debtor would not be sufficient to meet the claims of the creditors in full and that if they are to pay any court-fee at all, it should be paid on the amount actually distributed to them. The Court by its Order No. 240, dated 30th August 1937, directed these petitioners to pay court-fees on their entire claim, namely a sum over Rs. 18,000.

(2.) Upon hearing the learned advocates for the petitioners, for the Receiver and the learned Senior Government Pleader on behalf of the Crown, it appears that the order of the Court below in directing the petitioners to pay court-fees on the sum of Rs. 18,000 is unjust and inequitable. These petitioners were not the plaintiffs in the suit. They were creditors of the deceased person and they were summoned as defendants and asked to state their claims. They stated their claims in full, though they knew that the estate of the deceased was not sufficient to pay their claims in full. Under Order 20, Rule 13 (2), Civil P.C., in such an administration suit the Court will observe the same rules as to the respective rights of the creditors as may be in force for the time being with respect to the estate of a person adjudged insolvent. If the petitioners had been the plaintiffs and made a claim to get the sum of Rs. 18,000 out of the estate of the deceased, they would certainly be found liable to pay court- fees on the sum of Rs. 18,000. But they have not done so and it is, in my opinion, unjust and inequitable to call upon them to pay court-fees on that sum while offering them a dividend to the extent of 7 1/2 per cent. of their claim. Having regard to the claims of the fiscal authorities on the one hand and fair dealing towards the petitioners, who were the defendant-creditors in an administration suit on the other, the proper order would be that the defendant-petitioners ought not to be called on to pay court-fees on any sum beyond what they are paid. The rule is accordingly made absolute on these terms with costs bearing-fee being assessed at two gold mohurs. The receiver's costs will be paid out of the estate. B.K. Mukherjea, J.

(3.) I agree with my learned brother in the order that has been passed by him. The petitioners before us are two of the creditors defendants in a suit commenced by another set of creditors for administration of the estate of a deceased debtor who is now represented by defendant 1. Both these petitioners were impleaded as parties defendants before the preliminary decree, which was passed on 28 September 1934. They set out in their written statements their claims against the estate of the deceased aggregating to more than Rs. 18,000, and the preliminary decree, besides containing other directions, declared, in general terms, that the claims of the creditors were proved. One Babu Amulya Mohan Ray was appointed as a receiver to carry on the administration of the estate in pursuance of the directions contained in the preliminary decree. By an order of the Court dated 28 February 1937, the Subordinate Judge allowed certain dividends to be paid to the creditors on a basis of 7 1/2 per cent. upon the amounts found to have been due to them. The petitioners received notices from the Receiver asking them to receive the amounts declared in their shares amounting to about Rupees 1100 on payment of proper court-fees. The petitioners, as the records of the Subordinate Judge show, declared their willingness to pay court-fees on the actual amounts they were going to receive as dividends, but they were not willing to pay court-fees upon the entire amount of their claims, irrespective of what were being paid to them as dividends. The matter came up before the Court on a reference made by the Receiver and the Court decided the point against the petitioners and in favour of the Receiver. It is this order which we have been invited to revise.