Judgment:
ORDER
Vikramajit Sen, J.
1. By this order I propose to dispose of I.A. No. 8038/98 filed on behalf of Plaintiff under Section, 151 of the Code of Civil Procedure, seeking the issuance of a direction to Defendants 2. and 3 to deposit the Court fee for drawing up the decree.I.A. No. 8039/98 has been filed on behalf of Defendant No. 6 and is a reproduction ,Verbatim, of the other application. A Reply to I.A. 8038/98 has been filed on behalf of Defendants 2 and 3.
2. The objection raised on behalf of Defendants 2 and 3 is that the application is not maintainable as the case has been decided on 7.5.1996. It has also been stated that all the parties have filed appeals against the judgment passed, and these are pending before a Division Bench of this Court. It is further, submitted that the judgment has varied the terms of compromise arrived at between the parties and has increased the liability of Defendants 2 and 3 against their consent. To this extent it is non est.
3. The question of the legality of the judgment, insofar as it is impermissible for the Court to vary the consent terms, is a matter which is to be appropriately agitated before the Division Bench which is seized with the Appeals. I would, thereforee, not venture further into this province. Suffice it to mention that the following cases have been relied upon, namely, Kaluram Bheruji Vs . Bai Parvati. : AIR1982Guj233 , which states that a decreed passed on the basis of a compromise altered by the Court would be a nullity. In Pioneer Engineering Co. v. D.H. Machine Tools AIR 1986 Del 165, it has been held that the court cannot enlarge time fixed by compromise between the parties. Similar pronouncements had earlier been made in Jaynal Haldar Vs . Khorsed Sheikh, : AIR1982Cal118 .
4. It is contended by learned counsel for Defendant Nos. 2 and 3 that the terms of the compromise have been varied unilaterally by the Court thereby enlarging the sum of Rs. 15,000/- to Rs. 1,25,000/-. The contesting non-Applicants had recorded their consent keeping in view the sum of Rs. 15,000/-. It is for this reason that the Court fee has not been paid. Reliance has also been placed on T.E.K. Muhammed Amiruddin Vs . T.R. Muhammad Ibrahim & Ors., : AIR1957Mad667 , in which it has been observed as under:
'I may add that I agree that the direction in the further order of the lower Court, dated 11.2.1954 making the Plaintiff liable to pay the additional court-fee of Rs. 500 in case this civil revision petition was not allowed , in spite of the suit being dismissed, as requested for by both sides, as not pressed, was without jurisdiction, as urged by the learned counsel for the plaintiff, though the point is only of academic interest in the view I have taken. No Court can compel any party to pay the additional court-fee, even if rightly levied, when he does not want to pay it, for whatever reason, and is willing to have the suit dismissed for such default.
The penalty for not paying the additional court-fee due is the dismissal of the suit, even with the costs of the other side if it is on record and presses for it. After the dismissal of the suit for such default (and not on merits) there is no jurisdiction in the Court to levy the court-fee from him by coercive process, or to proceed against him for contempt for not paying the balance of court-fee due. The Court could have refused to dismiss it on request till court-fee was paid and dismissed it for default of payment. In hundreds of cases, Plaintiffs and others fail to pay the additional court-fee really due , and the only penalty they incur is the dismissal of their suit or proceeding and the forfeiture of the court-fee already paid.
I have never heard of any coercive process being taken against a Plaintiff for recovering the additional court-fee by sale of his properties or by his arrest. The suit is simply dismissed for default of payment of the additional court-fee, even when it is really due. In a recent case, a Bench of this Court, to which I too was a party, has held that even where a Court has spent much time and energy and passed an order in final decree proceedings in a partition suit, and that decree has to be drawn up stamp paper, in order to be executable , the Court has no power to draw up the final decree and levy coercive process, against the parties liable, for recovering that stamp amount, and that the Court is only given the liberty not to draw up the final decree if the requisite stamp paper is not furnished.
So, the lower Court could have merely refused to dismiss the suit, on 11.2. 1954, on the request by both the parties, unless the additional court-fee was paid, and could have dismissed it for default of payment of the additional court-fee if this civil revision petition had been dismissed, and the additional court- fee was held to be due. It could never have resorted to coercive or contempt proceedings to recover the additional court-fee, even if it was held to be due in this civil revision petition. It is not a case akin to recovering the court-fee in a pauper suit for which there is a specific provision in the Civil Procedure Code, whereas there is no such provision for coercive recovery in cases like these. '
I am in respectful agreement with the ratio of this judgment. No orders of the nature prayed for in both these applications can be passed. If Court Fee is not paid the suit may be dismissed.
5. Both the applications are rejected. There shall be no order as to costs.