GOPALASWAMI NAICK Vs. THE PROVINCE OF MADRAS THROUGH THE DISTRICT COLLECTOR OF RAMNAD AT MADURA, AND ORS.

JUDGEMENT

(1.) THE appellant was the second defendant in a suit in the Court of the Subordinate Judge of Ramnad. There were four plaintiffs, the first plaintiff being the second plaintiff's mother and the third and fourth plaintiffs being her daughters. The suit was filed in forma pauperis for a declaration that a settlement dated the 27th February, 1938, purporting to have been executed by the first defendant in favour of the second defendant was not binding on the plaintiffs and for a partition of the property on the basis that the first plaintiff was the lawful wife of the first defendant and the second plaintiff his son. The third and fourth plaintiffs asked for a decree for maintenance and for marriage expenses. The first defendant denied that the first plaintiff was his wife and denied that the other plaintiffs were his children. During the pendency of the suit the first defendant died. The second defendant eventually agreed to the second plaintiff receiving 20 acres out of the properties in suit, and a decree was passed to this effect. The decree directed that the first plaintiff should pay the costs of the suit and the court -fee payable to Government.

(2.) THE order for the payment of the court -fee led to an application being made to the Subordinate Judge for the appointment of a Commissioner to divide the properties referred to in the suit and to allot to the second plaintiff 20 acres so as to enable the Government to proceed against that area for the realisation of the court -fee on the plaint. The Subordinate Judge dismissed the application on the ground that the decree required the first plaintiff to pay the court -fee and that the second plaintiff had not succeeded on the merits. On appeal to this Court, Shahabuddin, J., reversed the decision of the Subordinate Judge. He held that Order 33, Rule 10 of the Code of Civil Procedure was wide enough to allow a charge in favour of the Government on the 20 acres received by the second plaintiff under the consent decree. The appeal is from the judgment of the learned Judge.

(3.) THE learned Judge left open the question whether the Government was entitled to a charge in respect of the full amount of the court -fee, namely, Rs. 1,462 -14 -0 or Rs. 618 -10 -0, the court -fee payable on the claim of the second plaintiff and said that this question might be considered by the Court at the time of the execution. We adopt the same course.