1. This Civil Misc. Appeal is against the order of the learned Subordinate Judge, Eluru, in E. P. No. 13 of 1959 in O. S. No. 44 of 1956. The relevant facts nay shortly be stated:
2. The first respondent, Chandramma, sued in 'forma' pauperis against the second respondent for partition of properties, and for maintenance. The suit was decreed on 4-3-1957, and the decree of the Subordinate Judge is in the following terms:
'(1) That the plaint B schedule property be divided into two equal shares by metes and bounds and that the plaintiff be put in possession of one such share;
(2) That the defendant do pay plaintiff arrears of maintenance at the rate of 20 bags of paddy per year or money for the said bags calculated at the then prevailing market rate, commencing from 16-11-1951 (i.e.) on the 15th March of every year in those years, and do also pay future maintenance at the rate of 35 bags of paddy per year from 1-1-1956 payable on or before the 15th of March every year:
(3) That items 1 to 7 of plaint 'C' schedule do stand as a first charge for the realisation of the maintenance awarded to the plaintiff as above;
(4) That the suit be and the same is hereby dismissed in other respects;
(5) That the defendant do pay Govt. Rs. 196-13-0 being the proportionate pauper court-fee payable to Government in this suit in proportion to the above decree;
(6) That plaintiff also do pay Government Rs. 931-5-0 towards the balance of pauper court-fee payable to Government in this suit and that the plaintiff be entitled to execute this decree only after payment of the said amount towards pauper court-fee to the Government; and,
(7) That the defendant do pay plaintiff Rs. 23-2-0 towards proportionate costs incurred by her in this suit, and bear her own costs Rs. 156-0-0.'
3. The Collector of West Godavari filed an Execution Patition for recovery of the court-fee due to the Government by sale of the properties which were charged for the plaintiffs maintenance. The defendant objected to the execution on the ground that, according to the decree, the plaintiff was entitled to execute it only after payment of Rs. 931-5-0 due towards court-fee that the Government standing in the shoes of the plaintiff, cannot execute the decree as the court-fee was not paid, and that the value of the caddy was not correctly noted. These objections were overruled by the executing Court, and further steps in execution were ordered.
4. Aggrieved by this order, the second respondent (judgment-debtor) has preferred this appeal.
5. The only contention raised by Sri V. Parthasarathy, the learned counsel on behalf of the appellant is that the execution petition would not lie, as it is the plaintiff that was directed to pay the court-fee to the Government, and the decree also stated that she would be entitled to execute the decree only after the payment of the court-fee. In other words, the contention of the learned counsel is that the Government in this E. P. is attaching the decree obtained by the plaintiff under Order 21, Rule 53, C.P. C. and executing it as the attaching decree-holder. His submission is that under Order 21, Rule 53(3), C. P. C., the holder of a decree sought to be executed by the attachment of another decree shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute such decree in any manner lawful for the holder thereof. Inasmuch as the attaching decree-holder is a representative of the holder of the attached decree, argues the counsel, if the latter cannot execute the decree for non-payment of court-fee, the attaching decree-holder should suffer from the same disability.
6. This argument looks 'prima facie' attractive, but on a careful scrutiny must be rejected as unsustainable. In the execution petition the attaching decree-holder prays that, for the realisation of the amount due under the decree (evidently meaning Court-fee), the properties described in the schedule attached which are charged, may be brought to sale after complying with Order 21, Rules 64, 66 and 70. Apart from the fact that the Collector was described as attaching decree-holder in the cause title and the prayer in the E. P., there is nothing to indicate that the petiten is filed invoking the provisions of Order 21, Rule 53, C. P. C. On the other hand, it recites that the properties sought to be sold are subject to a charge for the payment of the amount (viz., the court-fee), and that the said property may be sold.
7. There is, therefore, no foundation whatever for the contention that the decree is being executed under Order 21, Rule 53(3), C. P. C.
8. The provisions of Order 33 also reveal that there is no substance in the appellant's contention. The provisions of Order 33, Rules 10, 11, 12, 13 and 14 may be noticed :
'10. Where the plaintiff succeeds in the suit, the Court shall calculate the amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper; such amount shall be recoverable by the State Government from party ordered by the decree to pay the same, and shall be a first charge on the subject-matter of the suit.'
11. Where the plaintiff tails in the suit ..... .... . . . . .... the Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court-fees ........... . . which would have been payable by the plaintiff if he had not been permitted to sue as a pauper.'
(1) The State Government shall have the right, at any time to apply to the Court to make an order for the payment of court-fees under Rule 10, Rule 11 or Rule 11-A.
(2) No order for payment out of money standing to the credit of any suit instituted in forma pauperis shall be made on the application of any party except after notice duly given to the Government Pleader on behalf of the Government.'
13. All matters arising between the State Government and any party to the suit under Rule 10, Rule 11, Rule 11-A or Rule 12 shall be deemed to be questions arising between the parties to the suit within the meaning of Section 47.'
'14. Where an order is made under Rule 10, Rule 11 or Rule 11-A the Court shall forthwith cause a copy of the decree or order to be forwarded to the Collector, who may, without prejudice to any other mode of recovery, recover the amount of court-fees specified therein from the person or property liable for the payment as if it were an arrear of land revenue.'
9. Order 33, Rule 10 provides for a case for the payment of court-fee where the plaintiff succeeds. It lays down that the amount of court-fee payable to the Government shall be recoverable by it from any party ordered by the decree to pay the same, and shall be a first charge on the subject matter of the suit. Rule 11, on the other hand, deals with the case of a pauper plaintiff who fails in the suit. Though there is no express provision male in the Code for the case of a plaintiff succeeding in part, and failing in part, the Court has necessarily to deal with the case by giving effect to both these rules, and apportioning the liability for the court-fee between the plaintiff and the defendant, depending on the success of each party. In the instant case, to the extent that the pauper plaintiff succeeded, the defendant was directed to pay Rs. 198-13-0, i.e., her proportion of the court-fee, to the Government, and it is represented that the defendant paid the same. To the extent that the plaintiff failed, she was directed to pay the balance of the court-fee, viz., Rs. 931-5-0 to the Government, The only point for consideration Is, whether Rs. 931-5-0 payable by the plaintiff, cannot be recovered by the Government by sale of the properties. The authorities dealing with this question may now be considered.
10. In Girija Kuer v. Secy, of State, AIR 1919 Pat 99, the scope of Order 33, Rule 10 was considered, and it was laid down that the argument, that the Government could proceed by an independent suit to recover the amount of the court-fee charged upon the property recovered in the suit, was unsustainable on the authority of the decision of the Allahabad High Court in Ram Das v. Secy, of State, ILR 18 All 419. In that case it was held by the learned Judges that the remedy as against the property impressed with liability as a charge for the payment of the court-fees due to the Crown in suits properly instituted by paupers need not be enforced by a separate suit but might be enforced by an application in an execution proceeding or application made to the Court executing the original decree.
11. Atkinson, J., laid down at page 101 that:
'We are of opinion that Order 33, Rule 10 creates two distinct, independent and separate fights and remedies. The first is a right in personam as against the individual ordered to pay by the decree; and the second, a right in the nature of a right in rem as against the property recovered in the suit, which is charged with the liability to pay and satisfy the court-lees properly Due ana payable to the Crown.'
Regarding the scope of Order 33, Rule 13, it was observed thus;
'In our opinion, Rule 13, Order 33 expressly provides that ell matters in controversy and in issue between any of the parties to a pauper suit, including the Crown, by virtue of their rights as a party concerning any question that may be debatable within the provisions of Rules 10, 11 and 12 of that Order, shall be determined in an execution proceeding before the Court executing the original decree and in no other way whatsoever. In law Order 33, Rule 13, operates as a bar to the institution of an independent suit, whether by the Crown or by any other person.'
It was also held that the contention that under Order 33, Rule 10 the court-fees is only a charge upon the property recovered so long as it remains in the hands of the person who is made personally liable is not correct.
12. It may be mentioned that in that case, the suit was by a pauper plaintiff for a declaration of title with a claim for recovery of possession of certain property. That suit was decreed, and the direction in the decree-was 'That the costs of the Government be recovered from the first defendant', and the Government not being able to recover the countee against the first defendant, applied to enforce their right under Order 33, Rule 10 by attachment and sale of the property mentioned in the petition in respect of which the plaintiff brought the suit, and obtained the decree.
13. A Bench of the Madras High Court in Chakrapani Aiyangar v. Govt. of India, AIR 1922 Med 125, ruled that the object of Order 33, Rule 10, C. P. C. is clearly to facilitate the recovery by Government of the court-fee where a pauper plaintiff has realised something from the litigation, and not to penalise a defendant for his adversary's pauperism by making him pay an undue proportion of the court-fee. This case, therefore, reiterated the principle that the Government have the right to proceed against the property decreed to the pauper plaintiff.
14. In Gadadhar Mandal v. Manaka Dassi, AIR 1926 Cal 859, a Bench of the Calcutta High Court held that, where in a suit in forma pauperis for maintenance the plaintiff obtained a decree in which the maintenance is made a charge on certain properties of the defendant under Rule 10, the first charge of the Government for costs must be on the subject-matter of the suit so far as the plaintiff succeeds but where the Government, instead of proceeding against the arrears of maintenance from which costs were ordered to be recovered, proceeds to sell the properties, the effect of the sale would be a sale or equity of redemption subject to the plaintiff's charge for maintenance. This case, therefore, is art authority for the position that even in suits for maintenance the Government is entitled to proceed against the property which is made subject to the maintenance charge in favour of the plaintiff, though it laid down that in such a case, the result of the sale by tha Government would be subject to the charge of the plaintiff's maintenance.
15. In Sopalaswami Naick v. Province of Madras, AIR 1945 Mad 462, a suit was filed by four persons in 'forma pauperis' and it was agreed that the second plaintiff should receive 20 acres of the property in the suit, and a decree was passed to that effect. The deuee also provided that the first plaintiff should pay the costs of the suit and the court-fee payable to the Government. It was held that the meaning of Order 33, Rule 10 is not that the first charge for payment of court-fee in favour of the Government shall be only on the subject matter of the suit which the party ordered to pay costs has recovered. The provision, that there shall be a first charge on the subject-matter of the suit, was held to be a distinct provision, and it was laid down that the Court may direct the plaintiff to pay the amount, but, in any event, it shall be a first charge on the property recovered, and that since the second plaintiff who was also one of the paupers, received or was entitled to receive 20 acres of the land, the court-fee payable to the Government was by reason of Rule 10 a charge thereon.
16. Having regard to all these decisions, I am of opinion that the Government are entitled to execute the decree for realisation of the court-fee against the properties that are made subject to the plaintiff's maintenance in this case. The fiction created by the language of Order 33, Rule 13 that the State Government shall be deemed to be a party to the suit under Rules 10, 11, 11-A or 12, should be confined only to the purpose for which it is created, viz., to deal with the question arising between the parties to the suit, within the meaning of Section 47, and cannot be extended.
A combined reading of Order 33, Rules 10 and 14 also suggests that the remedies under Rule 10 and Rule 14 are only alternative remedies, and that the amount of court-fee due to the Government can be recovered by execution in that very suit. The contention on behalf of the appellant that, because the pauper plaintiff had not paid the court-fee, and therefore was not in a position to exe-cute the decree, the Government also, cannot execute the decree, would lead to most unjust and absurd results. Being a pauper the plaintiff can never pay the court-fee to the Government, nor can the Government realise by proceeding against the property charged, that is not, and could not be the intention of the Legislature. This argument became possible only by reason of the improper wording of decree. The trial Court should have stated that the pauper plaintiff could execute the maintenance dacree, but that out of the sale proceeds thereof the court-fee should be paid first. I am, therefore, of the opinion that the contention raised on behalf of the appellant must be rejected.
17. The cases relied on behalf of the appellant viz., Kunwar Ragho Prasad v. Lala Mewa Lal, 22 Mad LJ 457 (PC); Varadaehavy v. Secy, of State, ILR 59 Mad 872 : (AIR 1936 Mad 602); Secy, of State v. Venkatalakshmanna, AIR 1926 Mad 565 and Mt. Bhagerna Kuer v. Ramdeni Rai, AIR 1949 Pat 466, have no direct bearing on the question for consideration. The decision of the Court below is correct.
18. The appeal accordingly fails, and is dismissed with costs of the Government Pleader.