The Secretary of State for India in Council vs Bhagwanti Bibi and Others

Straight, J.—This appeal is of a very unusual character, the Secretary of State, appellant, having been no party to the litigation below and his right to appeal only constructively arising under the terms of ss. 411 and 412 of the Code of Civil Procedure. The respondent, Musammat Bhagwanti, who does not appear and is not represented, brought a suit against Hardeo Das, Earn Kishan, Murlidhar and Binda Prasad for recovery of arrears of maintenance amounting to Rs. 812, for restoration of ornaments withheld from her, valued at Rs. 4,600, and for a declaration of her right to future maintenance at the rate of Rs. 15 per mensem. The suit was instituted by the plaintiff as a pauper on the 2nd May 1888, and the learned Judge, haying dismissed the first two items of the plaintiff''s claim, gave her Rs. 172-8-0, being maintenance at the rate of Rs. 15 per mensem from the date of the suit to the date of the decree, and declared her right to maintenance thereafter at the rate of Rs. 15 per mensem. The decree, to be precise, was expressed thus:-- "That Rs. 172-8-0, due to the plaintiff on account of the maintenance from the 2nd April 1888, the date of the suit, to this day, be allowed to the defendants as the costs due to them in proportion to the amount dismissed, or Rs. 5,412, but that the defendants do pay out of the plaintiff''s costs such amount as is payable by the plaintiff to the Government. Or in other words, a decree be passed in favor of the plaintiff for recovery of maintenance from this day at Rs. 15 per mensem, defendants being entitled to no costs. The defendants shall pay the plaintiff''s costs in proportion to the amount decreed." The effect of this decree is that the measure of the plaintiff''s costs was declared to be the amount payable by the plaintiff to Government, and the measure of the defendants'' costs was declared to be Rs. 172-8-0 arrears of maintenance decreed. It will thus be seen that in the decree of the learned Judge no provision was made for payment by any person to the Government of the court-fee on that portion of the plaintiff''s claim which was dismissed, namely, Rs. 5,412, on which the court-fee would be Rs. 250. It is this omission in the decree of the learned Judge which is the subject of complaint in this appeal by the Secretary of State. I am constrained to say that in my opinion a most inconvenient course has been adopted, and that, instead of coming to this Court with an appeal, the proper method would have been for the Secretary of State, through the Collector of Mirzapur, in apply to the learned Judge who passed the judgment and decree, to review his judgment and reframe the decree in such a way as to effect the object at which, this appeal is aimed. Looking to the language of s. 411 of the Code of Civil Procedure, read with s. 412, I am not prepared to say that the Secretary of State cannot properly be regarded as a party to the litigation so as to be in a position to prefer such an appeal as that which is before us. In the case of Janki v. The Collector of Allahabad ILR 9 All. 64 my brothers Brodhurst and Tyrrell held that in execution-proceedings arising out of a pauper suit the Secretary of State who has obtained an order under s. 411 may be regarded as a party to the suit within the meaning of s. 244. I am not prepared to hold that that was an erroneous view, and, adopting the principle therein enunciated, it seems to me therefore that it was open to the Secretary of State, as being a party aggrieved by the decree below, to prefer this appeal.

When, however, I come to deal with the policy and propriety of such an appeal, I can only remark that I think we might well have been spared it. Musammat Bhagwanti apparently is a Hindu widow with such small means that she was constrained to come as a pauper to obtain the assistance of the Court for the purpose of wresting from the hands of the male members of her husband''s family the small allowance of maintenance which has been decreed to her. The amount involved is, after all, to Government a very trifling one, and all the delay and expense that has been incurred in preferring this appeal might well have been avoided. However, we have no alternative but to administer the law as we find it. The terms of s. 412 are, in my opinion, mandatory, and it was obligatory upon the learned Judge below when he passed his decree to provide in that decree for payment by the plaintiff of the court-fees upon that portion of her claim which was dismissed, namely, Rs. 250. The result of this view is that the plaintiff will have to pay many months of her small maintenance allowance of Rs. 15 a month before she is quit of her liability to Government. Looking to her pauper position, I cannot help saying that I think the case was one in which the Government might have refrained from preferring this appeal, The appeal is decreed, and the judgment and decree of the Court below are modified in this way that a declaration must be inserted in the decree to the effect that the sum of Rs. 250, court-fee payable in respect of that portion of the plaintiff''s claim which was dismissed, is due from the plaintiff, Bhagwanti, to the Secretary of State, who will recover it in the same manner as the costs of suit are recoverable under a decree. The other defendants to the suit have been cited here as respondents for no earthly purpose or reason that I can see, because under s. 412 no power existed in any Court to order them to pay the costs of that portion of the claim of the pauper plaintiff which was dismissed. The appeal is decreed in part, qu� Musammat Bhagwanti, but without costs, and the decree will be amended in the manner I have indicated. As to the other respondents, the appeal is dismissed with costs.

Tyrrell, J.

I concur.