PRABHAKARA MENON Vs. STATE

JUDGEMENT

(1.) THE second plaintiff and the 11th defendant are the appellants in this case. THE suit was by two plaintiffs for and on behalf of the sub-tarwad for setting aside certain alienations. THE 11th defendant is also a member of the sub-tarwad. Prayer (a) in the plaint related to plaint A schedule properties, prayer (b) to B schedule, prayer (e) to C schedule and prayer (d) to D schedule. Seperate court fee had to be paid for each relief. Total court fee payable was Rs. 738-8-0. THE suit was filed informa pauperis. It was decreed as regards (b) relief and dismissed in respect of the other reliefs. THE plaintiffs were ordered to pay the court fee due to the State. From this decree the plaintiffs appealed in respect of the reliefs disallowed by the trial court. THE appeal also was filed informa pauperis. THE appeal was dismissed with costs. THE State filed an execution petition to recover the court fee payable for the plaint and the appeal memorandum and sought to proceed against the B schedule property which the plaintiff's sub-tarwad got under the decree. THE 2nd plaintiff opposed the petition contending that the state is not entitled to proceed against the B schedule property for the court fee due to the State. THE court below repelled this contention and allowed the execution Petition filed by the State. THE appeal is from that order.

(2.) UNDER O. 33 R. 10 CPC when the plaintiff succeeds in a pauper suit the court fee which he sought to have paid shall be recoverable by the State "from any party ordered by the decree to pay the same and shall be a first charge on the subject matter of the suit". It is argued for the appellant that O. 33 R. 10 will not apply to this case since the plaintiffs have not completely succeeded in the suit. We do not think that this position is correct. Reference may be made to a decision of the Bombay High Court in secretary of State v. Narayanan Balakrishnan, 29 Bom. 102. In that case the learned judge observed thus: "the phrases 'failure' and 'success' in relation to a suit, we understand to be used in Ss. 411 and 412 not as mere opposite terms, but as contradictories. 'failure' is a universal and not a particular negative of 'success'. Any modicum of success would prevent the result of a suit from being a'failure' within the meaning of S. 412. An entire absence of success is failure. When a suit is compromised the plaintiff cannot be said to have failed within the meaning of the section. "

(3.) WE hold that the appeal in this case was filed for and on behalf of the sub-tarwad of the plaintiffs and for its benefit and that the sub-tarwad should be deemed to be the real appellant in the case. It must therefore be taken that under the decree in appeal the sub-tarwad is liable for the court fee due to the State. In the circumstances we find no reason to interfere with the order of the court below. The appeal is dismissed with costs. Dismissed.