P. N. BHAGWATI, J. ( 1 ) A short question relating to Court-fees arises for determination in this case. Respondents Nos. 1 to 6 led a suit against the appellant to recover a sum of Rs. 4 35 0 at the foot of a mortgage executed by the appellant in favour of respondents Nos. 1 to 6. The suit resulted in a decree for Rs. 5 35 428 together with interest thereon at the rate of six per cent per annum from the date of the decree till payment and costs of the suit. The decree was passed on 7th November 1959 The appellant being aggrieved by the decree filed an appeal against the same in the High Court of Bombay and on the bifurcation of the State of Bombay the appeal was transferred to this Court. The appellants contention in the appeal was that respondents Nos. 1 to 6 who were mortgagees in possession had not rendered proper accounts of the mortgaged property and that if proper accounts were taken the appellant would be entitled to credit for 75 625 against respondents Nos. 1 to 6 The relief which the appellant claimed in the appeal therefore was that the amount of the decree passed against the appellant should be reduced by Rs. 1 75 625 This being the position it is apparent that the value of the subject matter of the appeal was Rs. 1 75 625 and if the appellant had not been allowed to file the appeal in forma pauperis the appellant would have had to pay Court-fees on the basis of the value of the subject matter of the appeal being Rs. 1 75 625 The appellant was however allowed to file the appeal in forma pauperis and no court fees were therefore paid by him at the time of the filing of the appeal. On 19th January 1962 the appellant and respondents Nos. 1 to 6 settled the dispute between them and it was inter alia agreed between the parties that a sum of Rs. 5 71 0 should be declared as due and payable by the appellant to respondents Nos. 1 to 6 at the foot of the mortgage. On 19th January 1962 the appellant and respondents Nos. 1 to 6 settled the dispute between them and it was inter alia agreed between the parties that a sum of Rs. 5 71 0 should be declared as due and payable by the appellant to respondents Nos. 1 to 6 at the foot of the mortgage. It appears that there was a second mortgage created by the appellant in favour of another party and that other party was therefore added as respondent No. 7 and his claim also formed the subject matter of the compromise. The terms of settlement duly signed by all the parties were presented before me and I was requested to pass a decree in accordance with those terms. Since the compromise was a lawful compromise arrived at between the parties I passes a decree in accordance with the terms of compromise reserving however the question as regards payment of court-fees. Notice was there after ordered to be issued to the Government Pleader since the question involved related to payment of court-fees and Mr. A. D. Desai the learned Assistant Government Pleader appearing on behalf of the State put forward the point of view of the State in regard to this question. ( 2 ) NOW it was not disputed and in fact it could not be disputed that the provisions of Order 33 apply also in relation to an appeal which has been allowed to be filed in forma pauperis under the provisions of Order 44 The contention of Mr. J. R. Nanavati learned advocate appearing on behalf of the appellant however was that once the application of the appellant to file the appeal in forma pauperis was granted the appellant was entitled under Order 33 Rule 8 to continue the appeal without payment of any court-fees unless the appellant was dispaupered under Order 33 Rule 9 or the appellants case on the disposal of the appeal fell within the provisions of either Rule 10 or Rule 11 of Order 33. It was nobodys case that the appellant was at any time dispaupered under Order 33 Rule 9 and Mr. J. R. Nanavati therefore contended that the appellant could not be directed to pay any court-fees unless the case/ could be brought either within Rule 10 or within Rule 11 of Order 33. It was nobodys case that the appellant was at any time dispaupered under Order 33 Rule 9 and Mr. J. R. Nanavati therefore contended that the appellant could not be directed to pay any court-fees unless the case/ could be brought either within Rule 10 or within Rule 11 of Order 33. The learned Assistant Government Pleader did not rely on Order 33 Rule 11 and the only question which therefore remained for consideration was whether the appellants case fell within the provisions of Order 33 Rule 10. According to Mr. J. R. Nanavati the provisions of Order 33 Rule 10 did not apply to the facts of the appellants case because it could not be said that the appellant had succeeded in the appeal. Mr. J. R. Nanavati contended that the crucial words in Order 33 Rule 10 were where the plaintiff succeeds in the suit and adapting the provisions of that rule to an appeal it was clear that those provisions could not apply unless it could be said that the appellant had succeeded in the appeal. The appeal ended in a consent decree but argued Mr. J. R. Nanavati the consent decree could not be said to constitute the success of the appellant in the appeal. It was not disputed by Mr. J. R. Nanavati that by the consent decree the appellant benefited to the extent of Rs. 86 100 inasmuch as the appellants liability under the decree passed by the trial Court would have been Rs. 6 57100/as on 19th January 1962 whereas instead of that liability the appellant was by the consent decree liable to pay to respondents Nos. 1 to 6 the lesser sum of Rs. 5 71 0 Mr. J lt. Nanavati however contended that this benefit could not be said to be success in the appeal so as to attract the applicability of Order 33 Rule 10 This contention of Mr. J. R. Nanavati was opposed by Mr. A. D. Desai and Mr. A. D. Desai contended that since the consent decree was passed in the appeal and as a result of the consent decree the appellant obtained benefit to the extent of Rs. 86 100 it was plain that the appellant had succeeded in the appeal to the extent of Rs. 86 100 and that the provisions of Order 33 Rule 10 therefore applied to the facts of the case. 86 100 it was plain that the appellant had succeeded in the appeal to the extent of Rs. 86 100 and that the provisions of Order 33 Rule 10 therefore applied to the facts of the case. These were the rival contentions urged on behalf of the parties and I shall now proceed to examine the validity of these contentions. ( 3 ) IT is obvious that the decision of the case must turn on the construction to be placed on the language of Order 33 Rule 10. That Rule runs as follows:-R 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 any party ordered by the decree to pay the same and shall be a first charge on the subject-matter of the suit. ( 4 ) IT would also be convenient to set out Order 33 Rule 11 though I am not directly concerned with the provisions of that Rule for the purpose of deciding the present controversy between the parties. That Rule is in the following terms:-R. 11. Where the plaintiff fails in the suit or is dispaupered or where the suit is withdrawn or dismissed (a) because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay the court fee or postal charges (if any) chargeable for such service or (b) because the plaintiff does not appear when the suit is called on for hearing 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 paid by the plaintiff if he had not been permitted to sue as a pauper. ( 5 ) IT is clear that both these Rules deal with the situation which may arise on the disposal of a suit. The provisions of Order 33 Rule 10 apply where the plaintiff succeeds in the suit while the provisions of Order 33 Rule 11 apply where the plaintiff fails in the suit or is dispaupered or where the suit is withdrawn or dismissed. The provisions of Order 33 Rule 10 apply where the plaintiff succeeds in the suit while the provisions of Order 33 Rule 11 apply where the plaintiff fails in the suit or is dispaupered or where the suit is withdrawn or dismissed. Both these rules refer to the result of the suit and make provision according as the result of the suit is one way or the other. Where the plaintiff succeeds in the suit the Court is empowered to calculate the amount of court-fees which would have been paid by the plaintiff if he had not been permitted to file the suit in forma pauperis and the Court can in such a case pass a decree for payment of the same against any party and the amount so decreed to be paid would be a first charge on the subject matter of the suit. Now obviously this rule would apply where the plaintiff succeeds either wholly or in part in the suit. Even if the plaintiff succeeds partly in the suit it can certainly be said of the plaintiff that he has succeeded in the suit. It is only when the plaintiff does not succeed at ail in the suit that the provisions of Order 33 Rule 10 would not apply and in that event since the plaintiff would have failed in the suit the provisions of Order 33 Rule 11 would apply. Failure in the suit would mean total absence of success in the suit. So long as there is even a modicum of success it cannot be said that the plaintiff has failed in the suit. This view has been taken by a Division Bench of the High Court of Bombay in Secretary of State v. Narayan Balkrishna (I. L. R. XXIX Bombay 102) where Batty J. considering the question whether the withdrawal of a suit by a pauper plaintiff with permission to bring a fresh suit could be said to be tantamount to failure of the plaintiff in the suit within the meaning of sec. 412 of the Code of Civil Procedure 1882 corresponding to the present Order 33 Rule 11 observed:-FAILURE of the plaintiff in the particular suit withdrawn is all that the section requires. The next question is whether withdrawal under sec. 313 amounts to failure. 412 of the Code of Civil Procedure 1882 corresponding to the present Order 33 Rule 11 observed:-FAILURE of the plaintiff in the particular suit withdrawn is all that the section requires. The next question is whether withdrawal under sec. 313 amounts to failure. The phrases failure and success in relation to a suit we understand to be used in sections 411 and 412 not as mere opposite terms but as contradictories. Failure is a universal and not a particular negative of success Any modicum of success would prevent the result of a suit from being a failure within the meaning of section 412. An entire absence of success is failure When a suit is compromised the plaintiff cannot be said to have failed within the meaning of the section. The fact that he has obtained an agreement which he is willing to accept prevents the result of his suit from depriving him entirely of all success. But if there is absolutely nothing gained by the suit so that the result is to leave the plaintiff in status quo ante or as here by reason of his liability for costs in a worse position it would we think be a strain of language to say that the plaintiff had obtained any success of any kind or degree by his suit. And as already remarked the total and entire absence of success in a suit must we think be regarded as failure therein ( 6 ) THIS decision laid down that the withdrawal of a suit by a pauper plain tiff with liberty to file a fresh suit amounted to failure of the plaintiff in the suit since so far as the suit was concerned the plaintiff did not gain anything the suit resulting in nothing but withdrawal. The withdrawal of a suit by a pauper plaintiff unconditionally without any liberty to bring a fresh suit was also considered by a Full Bench of the High Court of Bombay in Secretary of State v. Bhagirathibai (I. L. R. XXI Bombay) as failure of the plaintiff in the suit even though the plaintiff in that case obtained considerable advantage as a result of a compromise outside the suit. These two decisions emphasize that what has to be considered by the Court in deciding whether a particular case does or does not fall within the provisions of Order 33 Rule 10 or Order 33 Rule 11 is:- what is the result in the suit ? Does the result in the suit constitute success of the plaintiff either wholly or in part or does it constitute failure of the plaintiff in the sense that the plaintiff has not succeeded at all in the suit ? Now obviously this can be decided only by considering the decree or order passed in the suit. Of course the question would not present any difficulty when there is a decree adjudicating upon the merits of the suit. In such an event if the plaintiff has obtained any relief as a result of the decree it can always be said that the plaintiff has succeeded in the suit to the extent of the relief obtained by him; and if the suit is dismissed it can be said that the plaintiff has failed in the suit. If the suit is withdrawn it is clear having regard to the decisions of the High Court of Bombay to which I have just referred that the plaintiff has failed in the suit. I may mention at this stage that some other High Courts had taken a view different from that taken by the High Court of Bombay in the above two decisions and the Legislature therefore amended Order 33 Rule 11 so as to include specially within the scope and ambit of that rule the case of withdrawal of a suit. The question however remains as to what is the position when the suit is disposed of by a consent decree and the plaintiff obtains a certain benefit as a result of the consent decree? ( 7 ) I on my part do not see any distinction between the disposal of a suit by an adjudication on merits and the disposal of a suit by a consent decree. When a suit is disposed of by consent decree and the plaintiff obtains as a result of the consent decree a part of the relief claimed by him in the suit I do not see why it cannot be said that the plaintiff has succeeded in the suit. When a suit is disposed of by consent decree and the plaintiff obtains as a result of the consent decree a part of the relief claimed by him in the suit I do not see why it cannot be said that the plaintiff has succeeded in the suit. If the plaintiff can be said to have succeeded in the suit when he obtains a part of the relief claimed by him as a result of an adjudication by the Court there is no reason why the plaintiff cannot be said to have succeeded in the suit when the plaintiff obtains the same relief as a result of consent decree. There is neither principle nor authority to support any such distinction. Whether the decree be a decree as a result of an adjudication or a consent decree it disposes off the suit and embodies the result of the suit. A consent decree has no less efficacy than a decree after adjudication and merely because the plaintiff obtains the relief which he seeks in the suit without adjudication such adjudication being rendered unnecessary by reason of the defendant consenting to the plaintiff obtaining such relief it cannot be said that the plaintiff has not succeeded in the suit. Take for example a case where the defendant admits the plaintiffs claim to the relief in the suit and a decree is passed in favour of the plaintiff on the admission of the defendant. Can it be said in such a case that the plaintiff has not succeeded in the suit within the meaning of Order 33 Rule 10 ? It is of course obvious that the plaintiff has succeeded in the suit because the suit has resulted in a decree in his favour. The decree may have been passed on admission but it is yet a decree which embodies the success of the plaintiff. In the same manner a consent decree also embodies the success of the plaintiff to the extent to which it is in favour of the plaintiff and embodies the failure of the plaintiff to the extent to which it is against the plaintiff. It is not necessary in order to attract the applicability of Order 33 Rule 10 or Order 33 Rule 11 that there should be an adjudication by the Court and the plaintiff should succeed or fail in the suit as a result of such adjudication. It is not necessary in order to attract the applicability of Order 33 Rule 10 or Order 33 Rule 11 that there should be an adjudication by the Court and the plaintiff should succeed or fail in the suit as a result of such adjudication. If an adjudication were necessary in order to bring the case within either Order 33 Rule 10 or Order 33 Rule 11 the withdrawal of a suit by a pauper plaintiff with liberty to file a fresh suit could not have been considered failure of the plaintiff in the suit within the meaning of Order 33 Rule 11 by the Division Bench of the High Court of Bombay in Secretary of State v. Narayan Balkrishna (supra) and equally the withdrawal of a suit by a pauper plaintiff unconditionally also could not have been considered by the Full Bench of the High Court of Bombay in Secretary of State v. Bhagirathibai (supra) as failure. I am therefore of the opinion that the success or failure in the suit contemplated by Order 33 Rule 10 or Order 33 Rule 11 is not necessarily success or failure as a result of an adjudication but may also result from a consent decree. If as a result of the consent decree the plaintiff secures some benefit which he claimed in the suit the plaintiff can certainly be said to have succeeded in the suit to the extent of such benefit and correspondingly if the plaintiff does not get any benefit at all as a result of the consent decree the plaintiff can certainly be said to have failed in the suit. ( 8 ) NOW as I have already pointed out above though the language used in Rules 10 and 11 of Order 33 refers to a suit these Rules apply equally to an appeal by reason of the provisions of Order 44 Rule 1. This being the position it is clear that the appellant has succeeded in the appeal to the extent of Rs. 86 100 and the provisions of Order 33 Rule 10 must therefore apply to the facts of the present case. The appellant claimed relief to the extent of Rs. 1 75 625 out of which the appellant succeeded to the extent of Rs. 86. 100/but failed as regards the balance of Rs. 89 525 The appellant would therefore be liable to pay Court-fees on Rs. The appellant claimed relief to the extent of Rs. 1 75 625 out of which the appellant succeeded to the extent of Rs. 86. 100/but failed as regards the balance of Rs. 89 525 The appellant would therefore be liable to pay Court-fees on Rs. 89 525 while respondents Nos. 1 to 6 would be liable to pay court -fees on Rs. 86 100 Since the appeal is settled by agreement of parties the appellant if he had not been allowed to file the appeal in forma pauperis and had paid the amount of court-fees required to be paid on the appeal would have been entitled to refund of half the amount of such Court-fees under sec. 43 (1) of the Bombay Court-fees Act 1959 The State would have in that event got only half the amount of the Court-fees pay able on the appeal. I am therefore of the opinion that the appellant must be directed to pay only half the amount of Court-fees on Rs. 89 525 and respondents Nos. 1 to 6 must also be similarly directed to pay half the amount of Court-fees on Rs. 86 100 ( 9 ) I therefore direct under Order 33 Rule 10 that the appellant shall pay half the amount of court-fees on Rs. 89 525 and respondents Nos. 1 to 6 shall pay half the amount of court-fees on Rs. 86 100 There will be no order as to costs. Order Accordingly. .