1. This is an appeal against the judgment and decree in R. A. No. 7 of 47-48 on the file of the Additional Subordinate Judge of Mysore passing a decree in favour of the plaintiff in reversal of the judgment and decree in O. S. nO. 230/ 45-46 on the file of the Second Munsiff, Mysore, who had dismissed the suit.
2. One Siddegowda filed a suit in O. S. No. 67 of 34-35 on the file of the Subordinate Judge, Mysore, for a declaration that the properties mentioned, in Schedules A and B of the plaint filed by him belonged to his adoptive father and that while Schedule A, properties were In possession o his adoptive mother, the B Schedule properties were in possess ion of one Madegowda who was 2nd defendant in that case and who is 1st defendant in this citse. Madegowda contended that the A Schedule properties were in possession Of Sidde-gowda's natural father Kempegowda, while the B Schedule properties were in his possession. The adoption was found to be true, but the contention of Madegowda, the 2nd defendant in that case, prevailed, that is, it was found that the plaintiff Siddegowda was not the owner of either of the two properties but that the plaint A Schedule properties of that case belonged to his natural father, while the plaint B schedule properties belonged to Madegowda, the contesting defendant.
3. The learned Subordinate Judge dismissed the suit of Siddegowda, but at the same time he created a charge for recovery of the institution fee due by Siddegowda as he had filed the suit in 'forma pauper is on A Schedule properties stating that Siddegowda was saying that he was in possession of those properties. Half of the suit properly in this case was in the A Schedule and the other half of it was in B Schedule. In execution proceedings instituted by Government, the suit property was purchased by the plaintiff in this suit. As he, however, was not able to obtain possession of it, he filed the suit in O. S. No. 230/45-45 on the file of the Second Munsiff, Mysore, against the appellant Madegowda and another who is not a party to this appeal. As half of the plaint schedule property in the present suit was in the A. Schedule of the plaint in the previous suit, and it ia only that portion that the plaintiff purchased, he could not file a suit for possession and had to file the suit for partition and possession of half the property that belonged to his predecessor in title, i.e., Siddcgowda, plaintiff in the previous suit. The appellant 1st defendant contended that Siddegowda plaintiff in the previous suit had no interest in the property and as such the purchaser in the execution sale does not get any interest. He also contended that he had purchased the property in a revenue sale. The learned Munsiff upheld the contention of the 1st Defendant and dismissed the suit and as already observed the learned Subordinate Judge in reversal of the judgment ana decree of the learned Munsiff who had dismissed the suit, decreed the suit as prayed for, and it is against the decision of the learned. Subordinate Judge that the appellant who is 1st defendant in the case has come up in appeal to this Court.
4. Under Order 33, Rule 10 of the Code of Civil Procedure where the plaintiff succeeds in the suit filed in 'forma pauperis', the Court-fee shall be recoverable by the Government from any party ordered by the decree to pay the same and shall be a first charge on the subject-matter of the suit. Before a charge is created under this rule, It has to be remembered that in the first place, the plaintiff must have succeeded in the suit. This is not a case in which the plaintiff succeeded. In the second place the charge created under Order 33, Rule 10 has to be on subject-matter of the suit. The expression 'subject-matter of the suit,' considering the context in which it is used in the rule, is clearly the interest of the plaintiff to the extent he has been able to establish in that suit As observed by Abdul Ghani, J., with whom Venkataranga Iyensar, J., concurred In the case reported in '21 Mys L J 217 :
'the statutory charge provided under Order i$3, Rule 10 ol the Code of Civil procedure can only he in respect of a property which a suitor in 'forma pauperis' has succeeded in getting in the suit and 'the subject-matter' in that provision of law must be considered to mean subject-matter in so far as he succeeds in the suit and not all the property that is involved in the suit which the plaintiff attempted to get.'
In this case as already observed the suit filed by Siddegowda was dismissed. The plaintiff did not succeed in the case. Moreover since it was held in that suit that half the property belonged to his natural father and the other half to the 2nd deft., it cannot be said that he succeeded to any extent in respect of the property involved in the suit. It is clear, therefore, that no statutory charge was created under Order 33, Rule 10 C.P.C.
5. It must however be said that the Court did create a charge for recovery of the Court-fee due by the plaintiff in that suit on plaint A Schedule property. It is equally clear that this order is binding on the appellant Madegowda in this suit as he did not file an appeal against that portion of the Judgment. All the same the point for consideration is whether the interest of the appellant in the plaint schedule property is in any way affected by the sale in favour of the plaintiff on account of his haying purchased the Plaint A schedule property in the execution proceedings against Siddegowda who was the plaintiff in the previous suit. If for instance the plaintiff in the previous suit was only interested in suit property to the extent of a small fraction, say 1/5th interest, the utmost that could be said is that in the execution proceedings his 1/5th share has become the property of the purchaser, that is, the right, title and interest of the Judgment-debtor in the execution case has passed to the purchaser. If the plaintiff in that suit who was proceeded against as the judgment-debtor in the execution case, had no interest at all by no stretch of imagination can it be said that any interest can pass to the purchaser. Moreover, it has to be observed that the appellant was not a party to the execution proceedings. The plaintiff Siddegowda alone was imploded as the Judgment-debtor and any order passed in the execution case cannot be binding on the appellant Madegowda. The learned Subordinate judge was therefore right in dismissing the suit of the plaintiff. The appeal is, therefore, allowed. The Judgment and decree of the learned Subordinate Judge are reversed and those of the learned Munsiff restored.
6. The parties will bear their own costs in this appeal.
7. I agree.
8. Appeal allowed.