IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 WP(C).No. 823 of 2005(W) ------------------------ PETITIONER(S): --------------- P.U.VARGHESE, PALAKUNNEL HOUSE, THAIKATTUKARA, ALWAYE, ERNAKUAM DISTRICT. BY ADV. SRI.KOSHY GEORGE SRI.SUJITH MATHEW RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. 2. DEPUTY TAHSILDAR, REVENUE RECOVERY, ALWAYE. 3. C.KHALID, AGENT TO THE OFFICIAL LIQUIDATOR, OFFICE OF THE OFFICIAL LIQUIDATOR, KAKKANAD. R1&2 BY G.P. SRI.TEKCHAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF IA NO.1258/2000 IN I.O.P. NO.9/2000 DT.25.2.2000. P2: TRUE COPY OF JUDGMENT PASSED IN O.S. NO.362/2002 DT.20.2.2004. P3: TRUE COPY OF DEMAND NOTICE ISSUED U/S.34 OF THE RR ACT. P4: .DO. U/S.7 .DO. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR, J. .................................................................... W.P.(C) No.823 of 2005 .................................................................... Dated this the 22nd day of July, 2008. JUDGMENT The petitioner is challenging recovery proceedings for recovery of court fee payable by the petitioner who filed the suit as indigent person. The suit is decreed and according to the decree, petitioner is entitled to recover cost including court fee. However, Order XXXIII Rule 10 C.P.C. makes it mandatory for the court to pass order as to who should pay the court fee in a suit filed by a person as an indigent person. In this case the court has passed decree entitling the petitioner to recover the court fee along with other costs. Consequently it implies that petitioner is liable to pay court fee after recovering it from the defendant. However, at the time of filing W.P. in 2005, petitioner has stated that E.P. was being filed. The W.P. is therefore disposed of directing the execution court to recover court fee in execution proceedings and authorise remittance to the second respondent and release the balance to the petitioner i.e. the decree holder. However, if amount could not be recovered, then the court will have to decide whether petitioner is incidentally liable to pay court fee under Order XXXIII Rule 10. The execution court is directed to pass final orders within 2 a period of six months from now. Recovery proceedings will be stayed for six months and thereafter recovery will be based on civil court orders in the execution proceedings as stated above. C.N.RAMACHANDRAN NAIR Judge pms