IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 WP(C).No. 10779 of 2009(N) ------------------------------------------ OS.189/2005 of SUB COURT, PATHANAMTHITTA .................... PETITIONER(S): ------------------------ LILLYKUTTY MONACHAN, AGED 40 YEARS, W/O.LATE MONACHAN, KALEELUVILAYIL HOUSE, VAZHAMUTTOM EAST MURI, VALLICODE VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. BY ADV.MR.P.A.AUGUSTIAN MR.T.R.JAGADEESH RESPONDENT(S): ---------------------------- 1. THE DISTRICT COLLECTOR, PATHANAMTHITTA. 2. THE TAHASILDAR (RR), PATHANAMTHITTA DIST. 3. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS CHAIRMAN, VAIDHYUTHI BHAVAN, TRIVANDRUM. 4. THE EXECUTIVE ENGINEER, KSEB, PATHANAMTHITTA. 5. THE ASST.ENGINEER, KSEB, KUMBAZHA, PATHANAMTHITTA. 6. COURT OF SUBORDINATE JUDGE, PATHANAMTHITTA REPRESENTED BY GOVERNMENT PLEADER, HIGH COURT OF KERALA. BY BY GOVT. PLEADER MR.P.K.BABU ADV. MR.P.P.THAJUDEEN, SC, K.S.E.B FOR R3-5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.10779/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE JUDGMENT DT. 3.7.08 IN AS. 189/05, SUB COURT, PATHANAMTHITTA. P2:- COPY OF THE DECREE DT. 31..08 IN OS. 189/05. P3:- COPY OF THE DEMAND NOTICE DT. 11.11.08. P4:- COPY OF THE REPRESENTATION DT. 19.11.08. P5:- COPY OF THE REPRESENTATION DT. 22.12.08. TRUE COPY P.A. TO JUDGE TSS P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 10779 of 2009 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 27th day of July, 2009 JUDGMENT The petitioner's husband expired on 23.10.2003, due to electrocution; pursuant to which, the legal heirs of the deceased filed a suit for damages against the KSEB as indigent persons, availing the benefit of exemption of court fee as provided under Order 33 Rule 1 of the Civil Procedure Code. Subsequently, the suit was decreed against the KSEB, which however is stated as pending in appeal. Pursuant to the judgment and decree passed by the trial Court in favour of the petitioner, the revenue authorities issued Ext. P3 demand notice, asking the petitioner to remit the court fees to an extent of Rs. 78,400/- plus such other incidental expenses, lest the movable and immovable properties of the petitioner should be proceeded against, which in turn has been subjected to challenge in the Writ Petition. 2. The learned Government Pleader appearing for the State submits that, by virtue of Rule 10 of Order 33, the amount liable to be recovered as court fee from the concerned person who filed the proceedings as an indigent person and who secured the decree will be having 'first charge' over the amount liable to be paid by the person who suffered the decree. It is also pointed out from both the sides that the petitioner is yet to obtain the fruits of the decree, particularly in view WP (C) No. 10779 of 2009 : 2 : of the fact that the judgment and decree are under challenge at the instance of the KSEB. No recovery proceedings will lie in view of the admitted fact that the petitioner is yet to obtain the amount from the KSEB/Judgment Debtor pursuant to the concerned decree. 3. In the said circumstances, Ext.P3 issued by the second respondent under the relevant provisions of Kerala Revenue Recovery Act is set aside, without prejudice to the right of the respondents to proceed with further steps at the appropriate time. It also made clear that, as and when the KSEB/Judgment Debtor decides to satisfy the decree amount, pursuant to the finalization of proceedings before this Court or in the course of settlement arrived at in the meanwhile, the requisite amount payable as court fee by the petitioner shall be retained and disbursement of only the balance amount shall be effected, under intimation to the first and second respondents in this regard; causing the retained portion to be remitted against the court fees payable. The Writ Petition is disposed of accordingly. P. R. RAMACHANDRA MENON, JUDGE kmd