Ramyad Singh and Others vs Rambilas Singh and Others

Dawson Miller, C.J.—This is an application for leave to appeal to His Majesty in Council.

The suit was instituted to enforce a mortgage bond for Rs. 3,000, which with interest at Re. 1-1-0 per mensem up to the date of the decree of the Trial Court amounted to Rs. 9,325. The Subordinate Judge found in favour of the plaintiffs and passed a decree for that amount together with interest at the bond rate for two months, being the days of grace, which amounted to Rs. 198, bringing the total amount decreed to Rs. 9,523, He further ordered that from the expiry of the days of grace interest should run on the decretal amount at the rate of 6 per cent. per annum until realisation. The defendants appealed to the High Court. The appeal was allowed and the suit was dismissed. The plaintiffs have now applied for leave to appeal to His Majesty in Council. When the High Court decree was passed in July 1920, the interest at 6 per cent. added to the decretal amount would bring the amount in dispute to over Rs. 10,000.

The question for determination is whether in the circumstances the case complies as to amount or value with the provisions of Section 110 of the Civil Procedure Code.

It is clear that the amount of the subject matter in dispute on appeal to His Majesty in Council is over Rs. 10,000. It would also appear that the value of the subject-matter of the suit in the Court of first instance was under that amount. The plaintiffs, however, contend that in arriving at the value of the suit in the Court of first instance, the future interest awarded by the Trial Court up to the date of realisations, or at least up to the decree of the High Court, should be added in computing the value of the subject matter of the suit in the Court of first instance, and if that is done the value will comply with the requirements of the Statute. They further contend that in any case the decree or final order involves a claim to property of the value of over Rs. 10,000 and, therefore, the second Clause of the section entitles them to appeal.

In so far as the first question is concerned, I do not think the case presents much difficulty. It was decided by the Judicial Committee as long ago as 1860 in the case of Gooroopershad Khoond v. Juggutchunder 8 M.I.A. 166 : 13 Moo. P.C. 472 : 3 W.R. P.C. 14 : 1 Suth. P.C.J. 399 : 1 Sar. P.C.J. 742 : 19 E.R. 493 : 15 E.R. 177 : 132 R.R. 150 that the Sudder Courts ought not to give leave to appeal in cases in which the specified amount of Rs. 10,000 can only be reached by the addition of interest subsequent to the decree. At that time the Order in Council in force was that of the 10th April 1838, under which the only requirement as to value was that the subject-matter in dispute in the appeal to His Majesty in Council must be Rs. 10,000 or upwards, and not as under the present law that the subject-matter of the suit in the Court of first instance must also be of the like amount or value. I can see no reason, however, why the same rule should not be applied in computing the value of the subject-matter of the suit in the Trial Court. Again in Moti Chand v. Ganga Parsad Singh 24 A. 174 : 29 I.A. 49 : 6 C.W.N. 362 : 4 Bom. L.R. 153 : 8 Sar. P.C.J. 247 , a case in which the requirements as to value were the same as under the present Code, it was argued that to the amount of the lower Court''s decree should be added the interest which had been ordered to be paid until realisation and which had accrued at the time of the High Court''s decree in computing the value of the subject-matter of the suit in the Trial Court. Their Lordships, however, rejected this contention and held that the subject-matter of the suit in the Court of first instance was under Rs. 10,000 and as the first of the two conditions had not been fulfilled no appeal lay. The case is indistinguishable from the present and concludes the matter in so far as the first point argued is concerned. It is true that the Calcutta High Court has laid down that in a suit for recovery of possession of Immovable property with mesne profits, the subject-matter of the suit in the Court, of first instance includes the mesne profits claimable from the institution of the suit to the date of delivery of possession or until the expiration of three years from the date of the decree, on the ground that under the CPC the Court could provide in its decree for payment of. mesne profits for that period see Dalgleish v. Damodar Narain Chowdhury 33 C. 1286 and Basanta Kumar Roy v. Secretary of State for India 6 Ind. Cas. 792 : 14 C.W.N. 872 Those decisions have been followed upon that point in this Court, on the ground that the matter was one of settled practice in the Calcutta High Court which formerly exercised jurisdiction over this province, Mahabir Prasad Singh v. Anup Narain Singh 46 Ind. Cas. 137 : 3 P.L.J. 377 : (1918) Pat. 246 : 6 P.L.W. 327 although in the earlier case of Kesho Prasad Singh v. Shiva Saran Lal 44 Ind. Cas. 475 : 3 P.L.J. 317 : 4 P.L.W. 240 I had expressed a doubt as to how far they were consistent with the ruling of the Privy Council in Moti Chand v. Ganga Prasad Singh 24 A. 174 : 29 I.A. 49 : 6 C.W.N. 362 : 4 Bom. L.R. 153 : 8 Sar. P.C.J. 247 (P.C.). They were not followed by the Pull Bench of the Madras High Court in Subramania Aiyar v. Sellammal 81 Ind. Cas. 296 : 89 M. 843 : 2 L.W. 1057 : 18 M.L.T. 480 : (1916) M.W.N. 94 : 30 M.L.J. 317 and the ruling in those cases should not, in my opinion, be extended so as to include future interest in computing the value of the subject-matter of the suit. Moreover Sir Lawrence Jenkins, C.J., who was a party to the decision in Basanta Kumar Roy''s case 6 Ind. Cas. 792 : 14 C.W.N. 872, declined in the later case of Nand Kishore Singh v. Ram Gulam Sahu 17 Ind. Cas. 221 : 39 C. 1037 : 16 C.W.N. 1089 to allow future interest to be added in order to bring the subject matter of the suit up to the statutory amount.

It is next contended that the case comes within the second paragraph of Section 110 in that the decree appealed from involves a claim to property amounting to over Rs. 10,000. If the only condition necessary to found a right of appeal to His Majesty in Council were that the decree of the High Court should be for a sum of over Rs. 10,000, it is difficult to see what meaning can be given to the first paragraph of the section. In fact that part of the section would be rendered nugatory, if it were sufficient to show merely that the subject-matter in dispute on appeal to His Majesty in Council amounted to Rs. 10,000 or more in value.

The appellant relied upon Dalgliesh v. Damodar Narain Chowdhury 33 C. 1286, that was a suut for recovery of possession of lands valued at Rs. 5,460 and mesne profits which had not been assessed but, had been claimed in execution at Rs. 30,000. It was argued that future mesne profits awarded by the Trial Court''s decree could be added in estimating the value of the suit in that Court and this view was accepted by the High Court. That was sufficient to dispose of the matter. The Chief Justice, however, at the end of his judgment added that in any case he thought that the decree involved directly or indirectly some claim or question to or respecting property of the value of Rs. 10,000 or upwards within the meaning of the section. No reasons were assigned for this view and that part of the judgment was not necessary for the determination of the case, I cannot regard this dictum as an authority of much weight. In my opinion the conditions imposed by the first paragraph of the section are meant to apply to all cases, where nothing is involved in the decision except that which is the subject-matter of the suit. In such cases it seems to me the second paragraph of the clause can have no operation and both the conditions imposed by the first paragraph must be complied with. This construction gives effect to both the first and second paragraphs of the section. It is also the view taken by the High Court at Madras in dealing with that part of the section see Subramania Aiyar v. Sellammal 81 Ind. Cas. 296 : 89 M. 843 : 2 L.W. 1057 : 18 M.L.T. 480 : (1916) M.W.N. 94 : 30 M.L.J. 317. It is also not without significance that, in the case of Moti Chand v, Ganga Prasad Singh 24 A. 174 : 29 I.A. 49 : 6 C.W.N. 362 : 4 Bom. L.R. 153 : 8 Sar. P.C.J. 247 already referred to above, the value of the subject-matter of the suit in the Trial Court was under Rs. 10,000 but the amount in dispute when the High Court decree was passed exceeded that sum by the addition of interest. It was not even suggested either by the eminent Counsel who appeared for the petitioner or by their Lordships that the second paragraph could apply to the case.

The case of Surendra Nath Roy v. Dwarka Nath Chakrabutty 35 Ind. Cas. 605 : 44 C. 119 : 24 C.L.J. 350 21 C.W.N. 530 was also relied on by the learned Vakil for the appellant. That was a suit in ejectment which was valued in the lower Court under the Court Fees Act at one year''s rental viz., Rs. 440. The defendant contended that he field under a permanent mokurrari mourasi tenure and was not liable to ejectment. The suit succeeded before the Munsif, who found that the tenancy was not of a permanent character. The District Judge on appeal reversed the finding and dismissed the suit. An appeal by the plaintiff to, the High Court was dismissed. The plaintiff then applied for leave to appeal to His Majesty in Council, contending that the decree of the High Court involved a claim or question to or respecting property of over the prescribed value. It was found on enquiry that at the date of the High Court''s decree the value of the property was over Rs. 10.000. There was no direct evidence of the value at the date of the suit in the Court of first instance. The Court left open the question of whether the case came within the first paragraph of Section 110, but held that it came within the the Second paragraph. The learned Chief Justice on this point said: I think this matter does come within the second paragraph of Section 110 of the Civil Procedure Code, seeing that the decree or final order involves directly or indirectly some claim or question to or respecting property of the value of Rs. 10,000." Mr. Justice Mukerjee dealt with this part of the case upon the hypothesis that the only question to be decided was the point of time at which the value of the property affected by the decree was to he determined. He says: "in my opinion it is plain that when Section 110 provides that the decree must involve, directly or indirectly, some claim or question to or respecting property of the value of Rs. 10,000 or upwards, the intention of the Legislature is that the value is to be determined with reference to the date of the decree under appeal." He then refers to Allan v. Pratt (1888) 13 A.C. 780 : 57 L.J.P.C. 104 : 59 L.T. 674; Macfarlane v. Leclaire (1862) 15 Moor. P.C. 181 : 8 Jur. (N.S.) 267 : 10 W.R. 324 : 15 E.R. 462 : 137 R.R. 24l; Mchideen Haijair v. Pitckey (1893) A.C.193 : 62 L.J.P.C. 96; Dalgleish v. Damodar Narain Chowdhury 33 C. 1286 and other cases in support of the view expressed and adds: "In my opinion, it is perfectly plain that u/s 110 the point of time to be considered is the date of the judgment under appeal. If this principle is adopted, there is no room for controversy that in the case before us, the decree against which leave to appeal is sought does affect property of the value of Rs. 10,000 and upwards." In neither of the judgments are any reasons given for assuming that the safe was not governed by the first paragraph of Section 110 and the question is not discussed. Assuming, however, that the fasts of that case justify the conclusion that the second paragraph of the section applied, the judgment does not, in my opinion, conclude the point now under consideration. In the earlier case of Nand Kishore Singh v. Ram Gulam Sahu 17 Ind. Cas. 221 : 39 C. 1037 : 16 C.W.N. 1089 decided by the same High Court, the plaintiff sued to enforce a mortgage. The amount decreed by the trial Court could only be brought up to Rs. 10,000 by adding the interest allowed after the date of the decree, although the value of the subject-matter in dispute on appeal to His Majesty in Council from the High Court''s decree was over the required amount. It was argued that all that was necessary was that the decree or final order must involve directly or indirectly a claim to property of the statutory value, but the Court, consisting of Jenkins, C.J., and N.R. Chatterjee, J., refused to grant a certificate.

In my opinion this case falls within the first paragraph of the Motion, the requirements of which are not fulfilled, and the second paragraph has no application.

The application is dismissed with costs.

Coutts, J.

I agree.