MISTRI PARSHOTTAM JINABHAI Vs. SHAH MOTICHAND SHAMJI A DHARMADA TRUST

JUDGEMENT

(1.) A short question relating to Court-fees arises for determination in this case. Respondents Nos. 1 to 6 led a suit against the appellant to recover a sum of Rs. 4 35 0 at the foot of a mortgage executed by the appellant in favour of respondents Nos. 1 to 6. The suit resulted in a decree for Rs. 5 35 428 together with interest thereon at the rate of six per cent per annum from the date of the decree till payment and costs of the suit. The decree was passed on 7th November 1959 The appellant being aggrieved by the decree filed an appeal against the same in the High Court of Bombay and on the bifurcation of the State of Bombay the appeal was transferred to this Court. The appellants contention in the appeal was that respondents Nos. 1 to 6 who were mortgagees in possession had not rendered proper accounts of the mortgaged property and that if proper accounts were taken the appellant would be entitled to credit for 75 625 against respondents Nos. 1 to 6 The relief which the appellant claimed in the appeal therefore was that the amount of the decree passed against the appellant should be reduced by Rs. 1 75 625 This being the position it is apparent that the value of the subject matter of the appeal was Rs. 1 75 625 and if the appellant had not been allowed to file the appeal in forma pauperis the appellant would have had to pay Court-fees on the basis of the value of the subject matter of the appeal being Rs. 1 75 625 The appellant was however allowed to file the appeal in forma pauperis and no court fees were therefore paid by him at the time of the filing of the appeal. On 19th January 1962 the appellant and respondents Nos. 1 to 6 settled the dispute between them and it was inter alia agreed between the parties that a sum of Rs. 5 71 0 should be declared as due and payable by the appellant to respondents Nos. 1 to 6 at the foot of the mortgage. It appears that there was a second mortgage created by the appellant in favour of another party and that other party was therefore added as respondent No. 7 and his claim also formed the subject matter of the compromise. The terms of settlement duly signed by all the parties were presented before me and I was requested to pass a decree in accordance with those terms. Since the compromise was a lawful compromise arrived at between the parties I passes a decree in accordance with the terms of compromise reserving however the question as regards payment of court-fees. Notice was there after ordered to be issued to the Government Pleader since the question involved related to payment of court-fees and Mr. A. D. Desai the learned Assistant Government Pleader appearing on behalf of the State put forward the point of view of the State in regard to this question.

(2.) Now it was not disputed and in fact it could not be disputed that the provisions of Order 33 apply also in relation to an appeal which has been allowed to be filed in forma pauperis under the provisions of Order 44 The contention of Mr. J. R. Nanavati learned advocate appearing on behalf of the appellant however was that once the application of the appellant to file the appeal in forma pauperis was granted the appellant was entitled under Order 33 Rule 8 to continue the appeal without payment of any court-fees unless the appellant was dispaupered under Order 33 Rule 9 or the appellants case on the disposal of the appeal fell within the provisions of either Rule 10 or Rule 11 of Order 33. It was nobody's case that the appellant was at any time dispaupered under Order 33 Rule 9 and Mr. J. R. Nanavati therefore contended that the appellant could not be directed to pay any court-fees unless the case/ could be brought either within Rule 10 or within Rule 11 of Order 33. The learned Assistant Government Pleader did not rely on Order 33 Rule 11 and the only question which therefore remained for consideration was whether the appellants case fell within the provisions of Order 33 Rule 10. According to Mr. J. R. Nanavati the provisions of Order 33 Rule 10 did not apply to the facts of the appellants case because it could not be said that the appellant had succeeded in the appeal. Mr. J. R. Nanavati contended that the crucial words in Order 33 Rule 10 were where the plaintiff succeeds in the suit and adapting the provisions of that rule to an appeal it was clear that those provisions could not apply unless it could be said that the appellant had succeeded in the appeal. The appeal ended in a consent decree but argued Mr. J. R. Nanavati the consent decree could not be said to constitute the success of the appellant in the appeal. It was not disputed by Mr. J. R. Nanavati that by the consent decree the appellant benefited to the extent of Rs. 86 100 inasmuch as the appellants liability under the decree passed by the trial Court would have been Rs. 6 57100/as on 19th January 1962 whereas instead of that liability the appellant was by the consent decree liable to pay to respondents Nos. 1 to 6 the lesser sum of Rs. 5 71 0 Mr. J lt. Nanavati however contended that this benefit could not be said to be success in the appeal so as to attract the applicability of Order 33 Rule 10 This contention of Mr. J. R. Nanavati was opposed by Mr. A. D. Desai and Mr. A. D. Desai contended that since the consent decree was passed in the appeal and as a result of the consent decree the appellant obtained benefit to the extent of Rs. 86 100 it was plain that the appellant had succeeded in the appeal to the extent of Rs. 86 100 and that the provisions of Order 33 Rule 10 therefore applied to the facts of the case. These were the rival contentions urged on behalf of the parties and I shall now proceed to examine the validity of these contentions.

(3.) It is obvious that the decision of the case must turn on the construction to be placed on the language of Order 33 Rule 10. That Rule runs as follows:-