Lakshmikanta Jha, C.J and Chatterji, J.:— This is an application by the plaintiff for leave to appeal to the Supreme Court under section 109 of the Code of Civil Procedure from a judgment and decree of an appellate bench of this Court modifying the decree of the trial court.
The suit was for redemption of a usufructuary mortgage for a sum of Rs. 7,500. There was also a claim for mesne profits, the claim for the period antecedent to the institution of the suit being tentatively valued at a sum of Rs. 250.
The plaintiff's case is that he made a deposit of the mortgage money under section 83 of the Transfer of Property Act and, although a written notice of the deposit was duly served on the mortgagees, they did not give up possession and, therefore, their possession of the mortgaged property, after then service of notice, was wrongful.
The trial court decreed the suit with mesne profits, holding that the deposit was sufficient and the possession of the mortgagees from the date of the service of notice under section 83 was wrongful, and ordered mesne profits to be ascertained by the appointment of a Commissioner. The mortgagees came up in appeal to this Court and a division bench reversed the decree of the trial court with regard to mesne profits and allowed a lump sum of Rs. 1,000 in lieu thereof.
The judgment of this Court being one of reversal, only two conditions under section 110, paragraph 1, have got to be fulfilled, namely, (1) the subject-matter of the suit in the court of first instance is Rs. 10,000 or upwards, and (2) the amount or value of the subject-matter in dispute on appeal is the same sum or upwards. It is contended by Mr. Misra that the subject-matter of the suit in the court of first instance was Rs. 7,500, the amount secured under the mortgage, and a further sum of Rs. 250 tentatively claimed as mesne profits; therefore, the first condition of section 110, paragraph 1, of the Code of Civil Procedure has not been fulfilled. As Rs. 250 was claimed only tentatively as mesne profits, this Court, by its order dated the 25th September, 1950, directed the learned Subordinate Judge to hold an enquiry for the ascertainment of the actual mesne profits and give a rough estimate thereof for the purpose of valuing the suit and the appeal to the Supreme Court. The learned Subordinate Judge, after enquiry, has held that as there was a scramble for possession in 1351 Fasli, the land in suit was not cultivated in “that year and, therefore, the question of assessment of mesne profits for that year could not arise. But he held that Rs. 6,000 per year may be taken as a fair estimate of mesne profits per year for the years 1352 and 1353 Fasli.
It is conceded that 1351 and 1352 Fasli would be 1 the period antecedent to the institution of the suit. Therefore, Rs. 6,000, as found by the learned Subordinate Judge to be the amount of mesne profits payable for the year 1352 Fasli, if added to the mortgage money, namely, Rs. 7,500, will make the value of the subject-matter of the suit in the court of first instance upwards of Rs. 10,000 and thus the first condition of the first paragraph of section 110 is fulfilled. Mr. Misra's further argument is that, although the first, condition of section 110, paragraph 1, is fulfilled, the second condition is not satisfied because the value of the subject-matter in dispute on appeal is only Rs. 6,000, the amount which has been ascertained to be the mesne profits for the year 1352 Fasli. We think there is no substance in this argument. In determining the value of the subject-matter in dispute on appeal, we have to take into account mesne profits not only for the period antecedent to the suit, but also for subsequent period up to the date of the decree of the High Court. This will, in any case, include the mesne profits for 1352 and 1353 Fasli, even leaving out 1351. According to the report of the learned Subordinate Judge, the mesne profits for 1352 and 1353 Fasli may be taken to be Rs. 6,000 per year. For these two years only the amount will be Rs. 12,000. Therefore, the amount or value of the subject-matter in dispute on appeal is more than Rs. 10,000. Thus both the conditions which are required by paragraph 1 of section 110 have been fulfilled.
Mr. Misra has lastly argued that the case is governed by the provisions of Article 133(1) and therefore, the amount or value of the subject-matter of dispute in the court of first instance as well as on appeal ought to be not less than Rs. 20,000. An examination of the provisions of Articles 133 and 135 shows that there is no substance in this contention. The decree sought to be appealed from was passed on the 31st August, 1949, and the application for leave to appeal was filed on the 30th November, 1949, when the provisions of sections 109 and 110 of the Code of Civil Procedure were in force. As soon as the judgment was pronounced and the decree made, the petitioner, as an aggrieved party, had a right to prefer a direct appeal to His Majesty in Council under the provisions of sections 109 and 110 of the Code of Civil Procedure. But after the passing of the Indian Independence Act, and before the commencement of the Constitution, the jurisdiction of the Federal Court was enlarged and the appellate jurisdiction of the Privy Council in civil cases was transferred to the Federal Court by the Federal Court (Enlargement of Jurisdiction) Act (Act I of 1948) which came into force on the first day of February, 1948. Under this Act, therefore, appeals in all civil cases from which a direct appeal could have been carried to His Majesty in Council either with or without special leave could lie to the Federal Court under the provisions of the Code of Civil Procedure, 1908. The present application was filed for leave to appeal to the Federal Court. Now under the Constitution, jurisdiction and powers which were exercisable by the Federal Court immediately before the commencement of the Constitution have vested in the:Supreme Court under Article 135 and it is by virtue of this Article that the jurisdiction in respect of the present case now vests in the Supreme Court. And if jurisdiction and powers are exercisable by the Supreme Court under Article 135, the requirements of section 110 of the Code of Civil Procedure have to be fulfilled as to the value or amount and not the requirements of Article 133 of the Constitution. This latter Article cannot apply where the right to appeal accrued before the Constitution came into force. A similar point was considered in an unreported case of this. Court (Ramkumar Das v. Jagdish Chandra Deo Dhabal Dev—Supreme Court Appeal no. 3 of 1949, decided on the 4th April, 1950) and it was held that Article 133 has no application in such a case.
We, therefore, direct that a certificate be issued that as regards amount or value and nature the case fulfils the requirements of section 110 of the Code of. Civil Procedure. The petitioner is entitled to costs:.1 hearing fee five gold mohurs.
Leave granted.
G.N.P