Sir Shah Muhammad Sulaiman, C.J and Bennet, J.:— This is an application for leave to appeal to His Majesty in Council from a decree of the High Court in a mortgage suit. The claim was brought for recovery of Rs. 17,000 against defendant No. 1 principally, with a prayer that defendants 2-4 were liable to pay Rs. 7,625 under a hypothecation bond and in case of default the mortgaged property was liable to be sold. There was a further relief that in case the mortgaged property was not found sufficient to satisfy the mortgage decree the plaintiff would be permitted to apply for a money decree against defendant No. 1. The value of the subject-matter in dispute in the trial court was more than Rs. 10,000 so far as the defendant No. 1 was concerned but was less than Rs. 10,000 so far as the defendants 2-4 were concerned, but their property which had been mortgaged was sought to be sold under the decree. The learned Subordinate Judge came to the conclusion that defendant No. 1 was liable for the full amount but that the defendants 2-4 were liable to the extent of Rs. 915 only, qua the arrears of rent which had accrued prior to the date of the security bond, but that their property was not liable for rents which accrued after the security bond. The plaintiff appealed to the High Court and the question raised before the High Court was whether the mortgaged property was liable for rents which accrued after the date of the security bond also. On an interpretation of the mortgage deed the High Court came to the conclusion that the rents which accrued after the date of the security bond were also charged on the property and the property was liable to be sold in execution of such arrears, but the total liability of defendants 2-4 was limited to the sum of Rs. 7,625 only.
It is contended on behalf of the applicants that the decree of the High Court involved both directly and indirectly a claim or question as to and respecting property of the value of Rs. 10,000, because the value of the mortgaged property sought to be sold exceeds Rs. 10,000. On behalf of the respondents it is contended that the value of the subject-matter in dispute is less than Rs. 10,000 and the High Court's decree does not involve any claim or question as to or respecting property of the like amount.
Great reliance is placed on the case of Subramania Ayyar v. Sellammal (1), in which case the value of the subject-matter in dispute in the first court was certainly less than Rs. 10,000 but the amount of money due up to the date of the High Court's degree, including mesne profits which had fallen due, came to more than Rs. 10,000. The Madras High Court held that the case did not fulfil the requirements of section 110 of the Code of Civil Procedure. At page 844-5 Wallis, C.J, observed: “the amount or value of the subject-matter in dispute in appeal to His Majesty in Council exceeds Rs. 10,000 owing to the claim for mesne profits for the period between the institution of the suit and the petition for a certificate” and did not accept the contention that this would entitle the applicant to a certificate. “If this contention be accepted, a certificate must be granted in any case in which the amount or value of the subject-matter in dispute on appeal to His Majesty in Council is not less than Rs. 10,000, whether or not the amount or value of the subject-matter of the suit in the court of first instance fell below Rs. 10,000, and this provision becomes wholly nugatory.” We entirely agree with that observation so far as it goes. It is not open to an applicant to add to the value of the subject-matter in dispute the amount of mesne profits which have accrued up to the date of the certificate for leave to appeal to His Majesty in Council if the value of the subject-matter in the trial court was less than Rs. 10,000. In that case it appears to have been argued by counsel that mesne profits calculated up to the date of the High Court's decree, if included, would raise the valuation to Rs. 10,000, but this contention does not appear to have been accepted; or it may be that the High Court's decree itself had not directed the payment of mesne profits to that extent. It is therefore not at all clear that the learned Chief Justice meant to lay down that even if the High Court's decree had awarded an amount including mesne profits which was in excess of Rs. 10,000, no appeal would lie. The calculation of mesne profits may be a point in dispute and in some cases no mesne profits may accrue at all. If, therefore, the High Court's decree itself does not fix that amount, it may be a question whether the requirements of section 110 of the Code of Civil Procedure are fulfilled.
Section 110 consists of three paragraphs. The first paragraph refers to the case where two conditions are fulfilled, namely (1) the amount or value of the subject-matter of the suit in the court of first instance should be Rs. 10,000 or upwards, and (2) the amount or value of the subject-matter of appeal to His Majesty in Council must be the same sum or upwards. Where only one of these conditions is fulfilled, and not both, this paragraph cannot be applicable. The second paragraph contains an entirely different condition, namely (3) or the decree or final order must involve, directly or indirectly, some claim, or question to or respecting property of like amount or value. It is quite obvious that even if none of the conditions mentioned in the first paragraph is fulfilled but the sole condition mentioned in the second paragraph is fulfilled, the requirements of section 110 will be complied with, because these two sets of conditions are alternative and may be mutually exclusive.
It seems to us that if the applicants can satisfy the court that the decree or final order passed by the High Court, which is sought to be appealed against to His Majesty in Council, involved directly or indirectly some claim or question in respect of the amount of Rs. 10,000 or upwards then they are entitled to appeal as of right, provided the decision of the court below has not been affirmed or there is a substantial question of law involved as required by the third paragraph of that section. We must hold that the condition laid down in the second paragraph is independent and self-sufficient and is not in any way dependent on the fulfilment of both or either of the conditions in the first paragraph.
The main difficulty in this case is whether the condition contained in the second paragraph is at all fulfilled. So far as the pecuniary liability of the applicants' property is concerned it is certainly limited to the sum of Rs. 7,625 only. They can never be called upon to pay more than that amount, nor can more than that amount be realised out of their property. But it cannot be disputed that property worth more than Rs. 7,625 can be put up for sale at auction in execution of the mortgage decree and sold. After the realisation of Rs. 7,625, the balance will have to be paid to the defendants. It is also clear that at auction the mortgaged property may not fetch its full value and therefore property worth more than Rs. 10,000 may be sold at auction for realising Rs. 7,625 only. The defendant can never recover the property when once sold, though he will get the surplus if any. In cases of partition it has been held by this Court, in the case of Sri Kishan Lal v. Kashmiro and in Muhammad Asghar v. Abida Begam (2), that although the value of the plaintiff's share may be less than Rs. 10,000 the entire property involved is of the value of Rs. 10,000 or upwards and the requirement of section 110 of the Code of Civil Procedure is fulfilled.
Looking at the reliefs claimed in the plaint there is no doubt that the plaintiff wants a decree for sale of the entire mortgaged property which is owned by the defendants, for the realisation of Rs. 7,625. The plaintiff claims that sum is a charge on the entire mortgaged property and it is open to the plaintiff to select any part of the mortgaged property at his option and put it up for sale at auction first, or he may put up the whole property for sale, particularly as the properties consist of house properties and it may be very inconvenient to put up fractional shares for sale only. The question in dispute was as to the interpretation of the hypothecation bond, namely whether it created a charge on the entire property for amounts which had accrued subsequent to the date of the document. We find it very difficult to hold that the High Court's decree does not directly or indirectly involve some claim or question to or respecting property of the value of Rs. 10,000.
Learned counsel for the respondents urges before us that the proper interpretation of section 110 is that the decree or final order must involve directly or indirectly some claim or question of like amount or value to or respecting property. This in our opinion is an impossible interpretation. This paragraph can mean only that there should be some claim or question directly or indirectly involved by the High Court's order either as to or respecting property of Rs. 10,000 or upwards. We are therefore of the opinion that inasmuch as the plaintiff is claiming to enforce a charge and obtain a decree for sale, with option to sell any part of the mortgaged property, there would be an appeal as of right if the total value of the property sought to be sold exceeds Rs. 10,000.
The affidavit filed on behalf of the applicants is, however, not clear. It does not specify the income or rent received from this property nor does it supply full details. Learned counsel for the respondents also asks for an opportunity to meet this affidavit. We accordingly order that this case should stand out for two-weeks in order to enable the applicants' counsel to file a supplementary affidavit and to supply a copy of it to the respondents' counsel, who should within ten days after that file a counter affidavit. The case should be put up after four weeks.