Divatia, J.:— This appeal arises in execution proceedings of a partition decree and is preferred by the government under the following circumstances: The plaintiff filed a suit in forma pauperis for partition of his one-fourth share in the suit property against the other members of his family. A preliminary decree was passed on 23rd April, 1936, by which it was declared that the plaintiff was entitled to a one-fourth share in the suit properties. It was further directed that the plaintiff should pay the amount of the court-fee stamp to the Government. Thereafter a final decree was passed on 27th September, 1937, but before that date the plaintiff found that he had to pay a greater amount for his share of the family debts than the value of the property which he would receive in partition. He, therefore, gave up the claim for his entire share in the family property in favour of defendants 1 to 3. The learned Judge in passing the final decree declared that the plaintiff had given up his share in the family properties and that he was not liable for any debt of the family. The result was that the properties remained with the defendants' who were to pay the debts. Thereafter the Government filed the present darkhast to recover Rs. 925-8-0 being the amount of court-fees which the plaintiff was directed to pay under the preliminary decree. Under O. 33, R. 10 of the CPC, 1908, the Government was entitled to recover that amount in case of the plaintiff's success in the suit from any party which was ordered by the decree to pay the same and it was to be a first charge on the subject-matter of the suit. The Government, therefore, in the first instance claimed the amount from the plaintiff and it was also prayed that it may be ordered to be paid by the auction sale of the plaintiff's share in two out of the suit properties. This darkhas was filed against the plaintiff as well as the defendants who were in possession of the property sought to be sold.
2. Even though the plaintiff had given up his right to the family property after the preliminary decree, the Government claimed the right to recover the court-fees from the plaintiff's share which was the subject-matter of the suit and over which there was a statutory charge. The learned Judge below dismissed the darkhast on the ground that the preliminary decree provided that the Government was entitled to recover the court-fees amount from the plaintiff, that the plaintiff having given up his share in the property, the two houses which were sought to be sold were in possession of the defendants, and as they were not parties to the darkhast, no order for their sale could be made in these proceedings.
3. The learned Judge was obviously in error in thinking that the defendants were not parties to the darkhast, because it is quite clear that all the parties to the suit were impleaded in the darkhast and the defendants appeared in the lower Court and have also appeared in this Court. It was, therefore, competent to the Court to make an order against the properties in their hands if they were liable. We have no doubt that under the provisions of O. 33, R. 10, the plaintiff's share in the two houses sought to be sold and which are now in the possession of the defendants is liable for this amount because it was the subject-matter of the suit, and as Government had the first charge on the same, the amount can be recovered from any person in whose possession they are. If the defendants had not been parties to the darkhast, probably no order for sale could have open passed in these proceedings, but as they are parties there was nothing to prevent the Court from passing the order for sale. It is contended on behalf of the respondents that O. 33, R. 10, would apply only if the plaintiff succeeds in the suit, but he has not succeeded because although he had a share in the property, he had to give it up as he had to pay more than to receive. It is also contended that the success of a party depends on what he gets in the final decree, and the plaintiff did not get anything under that decree. But it is entirely wrong to say that because the plaintiff voluntarily gave up his share after the preliminary decree was passed, he had not succeeded in the suit. The rights of the parties are decided by the preliminary decree, and it was held in that decree that the plaintiff had one-fourth share in the suit property. He, therefore, did succeed in the suit. The circumstance that being a pauper he cannot pay his share of the debts does not affect the fact that the succeeded on his claim which was denied by the defendants. The appeal is, therefore, allowed, the order of the lower Court is set aside and the darkhast should proceed against the plaintiff's one-fourth share, which he had before he gave it up, in the two houses sought to be sold in the darkhast. The appellant will be entitled to his costs in this Court as well as in the Court below.