STATE OF BOMBAY NOW THE STATE OF MYSORE Vs. DATTATRAYA NARASINGRAO UDIPI

JUDGEMENT

(1.) The facts leading up to this appeal shortly stated are as follows: The father of the plaintiff one N. Udipi had brought a Special Suit No. 95/1934 in the Court of the Civil Judge, Senior Division, Dharwar, for a declaration that his son Shankar was the adopted son of one D. Patel and for partition and allotment of his share in the properties of the said D. Patel. The suit was instituted against the relations of the said D. Patel. This suit was brought in forma pauperis. On 26-12-1936 the suit was dismissed and the said N. Udipi who acted as next friend on behalf of his minor son Shankar was ordered to pay Court-fees amounting to Rs. 1,732/-. Against that order an appeal was taken to the High Court of Bombay. That appeal was also filed in forma pauperis. On 17-1-1938 the said appeal was dismissed and the next friend was ordered to pay the Court-fees payable in the appeal amounting to Rs. 1,716-8-0. The total amount which the next friend had to pay under the orders of the trial Court and of the appellate Court as Court-fee amounted to Rs. 3,448-8-0. In the year 1942 the Government gave a special Darkhast No. 112 for the said amount of Court-fees. During the pendency of the Darkhast the next friend died on 17th January 1944. On 24th July 1944 the said Darkhast was dismissed for want of prosecution. Nothing else was done by the Government since then until the year 1951 when it tried to recover the amount of the Court-fees ordered to be paid by the next friend by revenue process treating the said amount as arrears of land revenue. The Government put the land of the next friend in the hands of his son, the present plaintiff, to sale. Thereupon on 19th June 1952 this suit was brought by the present plaintiff for a declaration that the said action of the Government was illegal, and for an injunction restraining the Government from proceeding with the said sale. One of the pleas urged by he plaintiff was that the Government's claim to recover the said amount was barred by Art. 182 of the Limitation Act and also by Section 48 of the Civil Procedure Code.

(2.) The plea of the Government as put forth in its written statement was that it had two remedies, i.e. execution and revenue process, any one of which it can put into operation for recovering the amount of Court-fees ordered to be paid.

(3.) The trial Court took the view that Art. 182 did not apply to the facts of this case but Section 48 of the Code of Civil Procedure applied and as the application to recover the amount was made after 12 years from the date of the orders in question, the same was barred under the said section. Against that decision an appeal was taken to the District Judge who agreed with the trial Judge that it was barred under Section 48 and dismissed the appeal. Hence the present appeal.