Ishwari Prasad Singh and Others vs Sir Kameshwar Singh Bahadur and Others

This is an application for leave to appeal to His Majesty in Council by the plaintiffs in a suit which was decreed by the trial Court but has been dismissed on appeal by the High Court.

The suit was valued at Rs. 7699 odd and the appeal bears the same valuation. It is contended on behalf of the applicants that they are entitled to leave as a matter of right, because the case falls under para. 2 of Section 110, Civil P.C., that is to say, the decree sought to be appealed from involves a claim or question to and respecting property of more than Rs. 10,000. The plaintiffs brought the suit for a declaration that a certain property could not be attached and sold in execution of the certificate, in certificate case No. 1009 of 1934-35. They rested their claim in the suit to this property on the ground that they had purchased it in execution of a mortgage decree obtained by them against the persons who owned the property. The suit was valued at Rs. 7699 odd, because that was the amount for which the certificate was issued.

It has, however, been asserted in the applicants'' petition that the value of the property itself which is liable to be sold is Rs. 52,000 odd. This statement is supported by an affidavit and has not been controverted in this Court on behalf of the proposed respondents. It must therefore be assumed that the property in respect of which the certificate was issued is worth more than Rs. 10,000.

The only question which is to be decided is whether that being so, the present case comes under para. 2 of Section 110, Civil P.C. In my opinion this question must be answered in the affirmative. It is plain that if the plaintiffs do not succeed in this litigation the property which they have purchased in execution of their mortgage decree will be liable to be sold, and that property is worth much more than Rs. 10,000. That being so, it is difficult to hold that the decree which is sought to be appealed from does not involve indirectly a question respecting property more than Rs. 10,000.

This view seems to us to be fully supported by the decision of the Allahabad High Court in Nadir Husain and Others Vs. Municipal Board and Another . In that case the plaintiff wanted a decree for the sale of the entire mortgaged property which was owned by the defendants for the realisation of Rs. 7625. The property itself however was worth more than Rs. 10,000. The learned Judges who decided the case observed in dealing with it that they found it difficult to hold that the decree of the High Court did not directly or indirectly involve some claim or question to or respecting property to the value of Rs. 10,000.

In our opinion the present case is fully covered by para. 2 of Section 110, Civil P.C., and we think that the case is a fit one for appeal to His Majesty in Council from the decree of this Court. Let the usual certificate issue.

We therefore allow this application with costs: hearing fee four gold mohurs.