Gosain Bhaunath Gir vs Bihari Lal and Another

Dawson Miller, C.J.—In this case the defendant No. 2 in a mortgage suit instituted before the Subordinate Judge of Gaya seeks leave to appeal to His Majesty in Council from a decision of this Court, dated the 9th August 1918, affirming a decision of the Subordinate Judge in execution proceeding a arising out of the decree obtained by the plaintiffs in the mortgage suit.

In order to understand how the question now under discussion arises, it is necessary to state the facts because the petitioner contends that notwithstanding that the judgment of this Court was a judgment of affirmance, there is a material question of law to be determined by their Lordships of the Privy Council. Bug before it becomes necessary to consider that question, the petitioner must make out that the subject matter of the suit in the Court of first instance and the subject-matter of the dispute on appeal to His Majesty in Council is of the sum of Rs. 10,000 or upwards.

The plaintiffs were mortgagees of a 16. annas share in Mauza Panania Azimgarh and also of a lo-annas share in Mauzi Panania Mani Chak. They brought a suit against the mortgagors on the basis of their mortgage. Tatty added the present petitioner as a defendant, he being interested in a 4-annas snare of Panania Azimgarn as subsequence mortgagee. When the decree was made, it was directed that there should be a sate first of all of a 12 annas share of Mauza Pauania Azimgarh and a 16 annas sua (sic) of Mauza Panama Mani Chak leaving the 4-annas snare of the first mentioned property in which the defendant No. 2, the present petitioner, was interested for subsequent sale, if the sale of the remainder of the property did not satisfy the plaintiffs'' decree. When execution proceedings were taken out, the appellant objected to the valuation given in the sale proclamation by the plaintiffs, who had assessed the value at Rs. 4,000 for one of the properties and Rs. 500 for the other. The present petitioner put the values at Rs. 16,000 and Rs. 4,000 respectively and these values were accepted by the Subordinate Judge. Subsequently that execution case was struck off for default of the decree-holders. A second execution case was then instituted and again the decree-holders put the value of these properties at Rs. 4,000 and Rs. 500 as previously. Again there was an objection by the petitioner and the objection was allowed. That execution case also was dismissed for default. A third attempt at execution was made, the values being stated as before, and this also failed. Eventually a fourth application was made in January 1917, when the decree holders put the value of Mauza Panania Mani Chak at Rs. 500, the value of 12 annas of Panania Azimgarh at Rs. 4,000 and the value of the 4-annas share of the same properly at Rs. 1,300. On this occasion they were successful and the sale took place in April 1917, the property being purchased by the decree holders for the sum of Rs. 4,600 for the 12-annas share of Panania Azimgarh, Rs. 1,400 for the 4 annas share of the same property and Rs. 650 for the Panania Mani Chak property. The petitioner then applied in September 1917 to have the sale set aside, urging the same grounds as he had previously taken. That application was dismissed by the Subordinate Judge and on appeal to this Court this Court affirmed the decision of the Subordinate Judge and dismissed the appeal. It is from that decision that it is now sught to appeal to His Majesty in Council.

It will be observed from what I have already said that the only interest which the petitioner has in the subject-matter of this suit is an interest which he himself places at a valuation of Rs. 4,000. Therefore, prima facie, it would appear that he was not entitled to appeal in a matter concerned with a claim to property of that amount. But his contention is that what he is asking the Court to do and what he is entitled to obtain is an order setting aside the sale of property valued according to him at a sum of well over Rs. 10,000, that is to say, setting aside not only the sale of the property in which ha is interested as mortgagee but also setting aside the sale of the other property which had been ordered to be sold first before that in which he was interested should be sold. It is quite true that he has an interest in seeing that that property is sold for an adequate sum and that the sale proclamation contains a proper valuation, but the decree, in so far as it affects his interests, deals only with property on his own shewing which is valued at Rs. 4,000 and, in my opinion, in order to determine the value of the subject matter in dispute it is necessary to look at it as it affects the interests of the party prejudiced by the order or decree objected to. Whatever may be the value of the property in which the petitioner is interested, his interest in that property cannot, it seems to me, from any point of view, be regarded as more than Rs. 4,000. In the case of De Silva v. De Silva 6 Bom. L.R. 403 it was laid down by Sir Lawrence Jenkins, C.J. that in order to determine the value prescribed by Section 596 of the CPC then in force, which is similar in its terms for present purposes to the pre sent Code, the decree has to be looked at as it affects the interests of the parties prejudiced by it and where the detriment to the party seeking relief is estimated at less than Rs. 10.000, then the value of the matter in dispute in appeal is not of the prescribed value, and the decree itself does not involve any claim or question to or respecting property of the prescribed value, and the case does not fulfil the requirements of the Code. In that case the plaintiff sued for a declaration that'' he was entitled to one third share in certain property which had belonged to his mother and for an order that the property should be partitioned and his share given to him with mesne profits. He established his claim in the Appeal Court and obtained a decree. The defendants then applied to obtain leave to appeal to the Privy Council against that decree, and the argument on their behalf was that the decree directed a partition of the whole property which was valued at over Rs. 12,000 and, therefore, the subject-matter in dispute exceeded the prescribed value, although the plaintiff''s share in that was less than Rs. 10,000. In dealing with this argument the learned Chief Justice laid down the proposition which I have just referred to. He said: "The argument has been that inasmuch as the whole property is valued at Rs. 12,000, there is a compliance with the terms of the section though the loss to the defendant by reason of the decree is limited to one-third of that property and profits. If we were to give effect to the contentions urged before us, it would follow that if the sole subject matter in dispute were an easement of trifling value, but affecting property worth Rs. 10,000 or upwards, then a right to appeal to His Majesty in Council under the CPC would exist. It appears to me that this would be giving to the words of the section an operation that could not have been intended, and the answer to the argument, in my opinion, is that while the detriment to the applicant under the decree must be estimated at less than Rs. 10,300, it has not been suggested that there is any other property outside the subject-matter in dispute which can be affected by our decision, so that the decree does not involve any claim or question to or respecting property of the required amount," It seems to me, agreeing as I do with that decision, that the principle there referred to applies with equal force to the present case. It is true that there is a dispute here as to property valued at more than Rs. 10,000 but what one really has to look to in all these oases, in my opinion, is what is the detriment to the person seeking to appeal to the Privy Council and whatever may be the value of the property in respect to which the claim is brought, if in fact the total amount of the subject-matter of the suit; so far as the appellant''s interest is concerned is under Rs. 10,000, then it seems to me that it does not come within the terms of the section. In the present case I think that the appellant has failed to shew that the subject-matter of the suit or of the dispute in appeal is of the value of Rs. 10,000 or upwards and this application must be dismissed with costs. Hearing fee five gold mohurs.

Coutts, J.

I agree.