Ram Labhaya, A.C.J:— This is a petition for, leave to appeal to the Supreme Court of India from an appellate decree of this Court, dated 19-3-51, under Sections 109 and 110 of the CPC read with Article 133 of the Constitution of India. The appeal has been valued at Rs. 1,43,248/-.

2. The decree of this Court was passed in an appeal under Section 19(f) of the Defence of India Act, 1939. The appeal was directed against an award given by Mr. Bivar, District Judge, Assam Valley Districts, by which he found that a sum of Rs. 6,788/- was payable to the petitioner on account of compensation Page: 135for 3 acres of tea land which had been requisitioned for the Military in October, 1942, and for injurious affection of another 10 acres of tea land contiguous to the area actually requisitioned. The claim for compensation with respect to another area of 26 acres was disallowed. Mr. Bivar found that only 13 acres, out of 39 acres, had tea bushes on them. We agreed with this finding. As regards the 10 acres over which there were tea bushes, compensation was allowed to the petitioner by Mr. Bivar. In the view of this Court, no compensation could have been allowed for any injurious affection so far as this area was concerned, as it was due to causes not directly connected with the act of requisition, but was a consequence of avoidable conduct on the part of the claimant. No enhancement of compensation was therefore, decreed, though the compensation allowed by Mr. Bivar had to remain as there was no appeal or cross-objection from the Government of Assam challenging this part of the award. The result was that the finding of Mr. Bivar as regards compensation for injurious affection of the 10 acres which had tea bushes on them, was affirmed. So far as the claim with respect to the 2 areas dealt with above is concerned, the decree of this Court was one of complete affirmance. As regards the area measuring 3 acres, which was actually requisitioned, the order of Mr. Bivar was varied. The compensation allowed for this area was enhanced to the extent that the petitioner claimed. The only variation in the decree was on this point. This variation was entirely in favour of the petitioner. The variation also gave complete satisfaction as the full amount claimed under this head was decreed. The proposed appeal to the Supreme Court of India does not challenge this part of the decision; it is directed against the decision relating to the two other parts of the tea garden, about which the decision of the learned District Judge was completely affirmed.

3. The question that arises for determination is—whether the petitioner is entitled to a certificate for leave to appeal to the Supreme Court of India as of right without showing that any substantial question of law is involved, on the ground that the decree of the Court of first instance, taken as a whole, was varied. The petitioner has put forward this claim.

4. The case is covered by Cl. (a) of Section 109 of the CPC. The petitioner wants to appeal from a decree passed on appeal by this Court. It would also be covered by Article 133 of the Constitution which permits an appeal from any judgment, decree, or final order if other conditions are satisfied. Section 110 of the CPC, requires that in such a case the amount or the value of the subject-matter of the suit in the Court of first instance must be ten thousand rupees or upwards, and the amount or value of the subject-matter in dispute on appeal to His Majesty in Council must be the same sum or upwards. Article 133 of the Constitution is exactly to the same effect on this point excepting that it substitutes ‘twenty thousand’ in place of ‘ten thousand’ in Section 110 of the CPC. So far as the valuation of the subject-matter is concerned, even the requirements of Article 133 of the Constitution are satisfied. The two items of claim which form a part of the subject-matter of the suit and also form part of the subject-matter in dispute on appeal to the Supreme Court, exceed rupees twenty thousand in value. The case, therefore, fulfils the requirements of Section 110 of the CPC and Article 133 of the Constitution of India so far as value goes.

5. The next question is—whether the petitioner can take advantage of the variation in the decree which was in his favour even though he is not appealing against the decree to the extent that it is varied in his favour.

6. The legal position is far from clear. There is a great diversity of judicial opinion on the point. The conflicting opinions which have been expressed by different High Courts on different occasions would defy any attempt at reconciliation, though it appears that the weight of authority even now is in favour of the view that if the decree of the appellate Court is one of affirmance as regards the subject-matter of an appeal to the Supreme Court, it would then be a decree which affirms the decision. The word ‘decision’ is not given the same meaning as the word ‘decree’ in the 3rd clause of Section 110 of the CPC, which reads as follows:

“…and where the decree or final order appealed from affirms the decision of the Court immediately below the Court passing such decree or final order, the appeal must involve some substantial question of law.” This view prevailed in ‘Narendra Lal v. Gopendra Lal’, 31 Cal WN 572, in which a decision of Their Lordships in ‘Annapurnabai v. Ruprao’, 51 Cal 969 (PC), was considered and explained.

7. Rankin, C.J held that the case in ‘51 Cal 969 (PC)’, was not, in itself, a sufficient authority to justify that Court in abandoning the principle which it had with other High Courts acted upon, that is to say, that it did not show that it was an erroneous view that we have to look to the substance and see what is the subject-matter of the appeal to His Majesty in Council. This view was not followed in ‘Purnendu Nath v. Radha Kanta Jew’, 54 Cal WN 538. In that case, the decree of the trial Court no doubt was varied in part but so far as the subject-matter of the proposed appeal to the Federal Court was concerned, there was no variation. The learned Chief Justice, in disposing of the petition, observed as follows:

“Whether such a decree as exists in this case is a decree of affirmance, has been the subject of much litigation. Undoubtedly, the earlier view of this Court was that it was a decree of affirmance, though in fact the actual decree had been varied. Other Courts have held a different view. However, the later practice of this Court is to treat a decree of this kind as a decree not of affirmance but a decree varying the decree of the trial Court.”

8. Acting on this view, it was held that the petitioner in that case was entitled to appeal as of right. This view does support the petitioner.

9. In ‘Venkitarami Chettiar v. Sakkutti Pillai’, AIR 1936 Mad 881, though the decree of the Court of first instance was varied, so far as defendant No. 3 was concerned, it was not varied as against defendant No. 2. The plaintiff petitioned for leave to appeal. It was held that

“what is to be regarded is not the decision as a whole but the decision as it affects the subject-matter in dispute.”

10. In ‘Gangadhara Ayyar v. Subramania Sastrigal’, AIR 1946 Mad 539, a Full Bench decision, it was found that the decree in that case varied the decree of the trial Court in important respects as it allowed 4 more items of property to the plaintiff. But the correctness of the earlier decision in ‘AIR 1936 Mad 881’, was not questioned. In ‘Lakshmanan Chettiar v. Thangam’, AIR 1947 Mad 227, the view that prevailed was that “when the appellate decree modifies the original decree upon a single point and that completely in the appellant's favour so that he has no further grievance in that matter the appellate decree is one of affirmance and the appellant cannot have, because of that modification, a right of appeal on other points on which the Courts have concurred without showing that there is a substantial question of law involved.”

11. In ‘Viraraghava Rao v. Narasimharao’, AIR 1950 Mad 124, the appellate decision of the High Court affirmed the decision of the Court below to the effect.

“that the defendants obtained no right as lessees and were not tenants within the meaning of S. 2(4) of Act XV (15) of 1946, and that upon the expiry of the lease in favour of plaintiff 3, the defendants became trespassers and were bound to pay damages to the plaintiffs.”

12. In regard to the quantum of damages, the decree of the lower Court was modified in 3 respects. The modifications were in favour of the defendants. The question was whether the defendants were entitled to leave to appeal to the Federal Court against the decree since the value of the subject-matter of the suit and appeal exceeded Rs. 10,000/- and the decree as a wliole did not affirm in its entirety the decree of the lower Court. Leave was allowed.

13. Mr. Barua has relied upon this case also in support of his contention. The case is, however, distinguishable, as would appear from the following observations of Raghava Rao, J. at page 135, para 19:

“While this is my view of the matter, on which it follows that the certificate of leave to appeal to the Federal Court asked for in this case should be granted, it goes without saying that even on the narrower view adopted by this Court in ‘Lakshmanan v. Thangam’, ILR (1947) Mad 744 : AIR (34) 1947 Mad 227, which is what my learned brother is prepared to accept, the applicant is entitled to the certificate asked for, because this is not a case of complete variance of the lower Court's decree on the question of damages, which leaves no further grievance to be agitated in this regard before a higher tribunal.”

14. The distinguishing circumstance of this case is that though the variation was in defendant's favour, it was not complete or entire, though Raghava Rao, J. seemed inclined to the view that ‘AIR 1946 Mad 539’ had been wrongly understood by the Division Bench in ‘AIR 1947 Mad 227’.

15. In ‘Kapurji Magniram v. Pannaji Debichand’, AIR 1929 Bom 359, the plaintiff's claim was decreed in part by the trial Court; on appeal, the High Court modified the decree. In both the Courts, an amount of Rs. 18,000/- referred to as a havala item, was refused. The plaintiff applied for leave to appeal to the Privy Council as regards the item, on which two Courts had admittedly con-curred. There was no question of law involved. It was held that under the circumstances of the case, and on a true construction of S. 110, it was necessary as the decree appealed from affirmed the decision of the Court below, on the item in question, that the appeal must involve some substantial question of law before it could be admitted. The Privy Council decision in ‘Annapurnabai v. Ruprao’, 51 Cal 969 P.C was referred to; it was not interpreted as containing anything against this view.

16. There are two Full Bench decisions from the Lahore High Court in which the same view has been taken. In ‘Brahma Nand v. Sanatan Dharam Sabha’, AIR 1944 Lah 329, Din Mohammad, J. observed as follows:

“If a decree of a Court of first instance is affirmed by the High Court, no appeal lies to His Majesty in Council unless a substantial question of law is involved. Why should then a party be allowed to override this salutary provision of law and to take his appeal to His Majesty in Council on a simple question of fact on which the High Court has agreed with the Court below merely because on a matter quite unconnected with it, a variation has been introduced by the High Court against which he has no grievance whatever? The part varied by the High Court not being any longer under controversy, the decree sought to be appealed against is obviously one of affirmance, and is not appealable unless a substantial question of law is involved.”

17. In the second Full Bench judgment ‘Wahid-Ud-Din Sheikh v. Makhan Lal’, AIR 1944 Lah 458, the principle enunciated is that—if a Court partly affirms and partly reverses a decision of a Court immediately below, the person aggrieved by the affirmed portion of the decree has no right of appeal to His Majesty in Council against that portion of the decree, merely because in the other portion of the decree, a variation has been made entirely to his satisfaction and he has no appealable grievance left in respect thereof.

18. In ‘Jaggo Bai…(Defendant); v. Harihar Prasad Singh…(Plaintiff).*’, AIR 1941 All 66, a Full Bench decision, the High Court affirmed the decision of the trial Court in regard to the defendant's liability to refund the sum of Rs. 26,000/- as claimed by the plaintiff. The rate of interest was, however, reduced from 6 per cent to 4 per cent. The appellant, however, denied his liability for interest and applied for leave to appeal to the Privy Council. It was, held that the appellant was entitled to a certificate under Section 110 of the CPC. It would appear that even here the variation in the decree, though in favour of the defendant was not entire or complete; he still had a grievance in the matter of the extent of the variation; the liability to pay interest at 4 per cent came to Rs. 12,380/-. This case, therefore, is distinguishable on facts. But AIR 1939 All 322 is an authority for the proposition that the question on which there had been concurrent findings could not be raised Page: 137in appeal unless there was a substantial question of law involved.

19. In ‘Brajasundar Deb v. Rajendra Narayan’, AIR 1941 Pat 269, a decision of a Special Bench, it was held:

“The expression ‘the decision of the Court immediately below the Court passing such decree’ as used in S. 110, means the same as the expression ‘decree of the Court below’, and the word ‘decision’ in the aforesaid expression means the decision of the trial Court taken as a whole. The true test for determining whether the High Court's decree affirms the decision of the lower Court is whether the decision of the Court below as a whole has been affirmed by the High Court, and not whether the decision on the point or points left in dispute has been affirmed by the High Court. Consequently, where the decree of the High Court reverses in part the decision of the lower Court whilst maintaining it with regard to the remainder of the claim, the decree of the High Court cannot be said to affirm the decision of the Court below and, therefore, an appeal to His Majesty in Council is competent even on points of concurrence between High Court and the lower Court without proving substantial question of law.”

20. In this case, the trial Court had dismissed the suit substantially. The plaintiff appealed. On appeal, the plaintiff's claim with regard to the lands in one village was decreed, but with respect to the lands of two other villages, it was dismissed, though on different grounds from those upon which the trial Court had dismissed the claim. The leading judgment in the case was given by Harries, C.J He recognised the fact that the point involved in that case was of considerable difficulty and there was a conflict of decisions even in the Patna High Court. The learned C.J adhered to this view as the Chief Justice of the Calcutta High Court in ‘Purnendu Nath v. Radha Kanta Jew’, 54 Cal WN 538, and ‘Kedar Nath v. Sree Sree Iswar Kalimata of Kalighat’, AIR 1950 Cal 341, which have been relied upon by Mr. Barua. In ‘Prandhan Das v. Promode Chandra Deb’, AIR 1946 Pat 19, the lower Court's decree was varied in the High Court with the consent of persons desiring to appeal to the Privy Council. It was held that those persons must show that a substantial question of law was involved, before they could be allowed to appeal from that part of the decree which affirmed the decision of the Court below.

21. In ‘Ghulam Abbas v. Govindrao’, AIR 1926 Nag 245, the view that prevailed was that where some variation in the decree is effected by the appellate Court and the applicants desire to appeal against the decision in so far as the Court affirms the decision of the lower Court, the decision of the appellate Court is one affirming the decision of the lower Court for the purposes of Section 110 of the CPC.

22. ‘Annapurnabai v. Ruprao’, AIR 1925 PC 60 is regarded as the basic decision on this question. This decision has been considered in nearly all the cases referred to above and has been variously interpreted. In that case, the defendants had appealed from the decree of the trial Court. The appellate decree increased the allowance by way of maintenance decreed in favour of defendants from Rs. 800/- to Rs. 1,200/- per annum, but affirmed the decree of the Court below in all other respects. Leave to appeal to the Privy Council was not allowed by the Court of appeal on the ground that the decree was one of affirmance and no substantial question of law was involved. The defendants applied for special leave. At the hearing of the application by their Lordships, it was intimated that the appeal would be confined to the question of maintenance only, though it was argued that an appeal lay as of right.

23. The order of their Lordships was in the following terms:

“In the opinion of their Lordships, the contention of the petitioner's counsel as to the effect of S. 110 of the Code is correct. They had, therefore, a right of appeal. Special leave to appeal should be granted, but should be limited to the question of maintenance.”

24. The order is very brief, but there is material in it for supporting either view of the law. The result has been that the decision has proved a fruitful source of a conflict which continues to this day. As observed by Din Mohammad, J. in ‘Kapurji Magniram v. Pannaji Debichand’, AIR 1944 Lah 329 at page 335, “the question as to what their Lordships of the Privy Council really intended to lay down is not easy to answer”. In these circumstances it is safer to take the view, with great respect to their Lordships, that this decision may not be regarded as a definite authority in favour of one view or the other even though the order of their Lordships limited the scope of appeal to the portion of the decree actually viewed.

25. I am persuaded to think that the weight of the authority is in favour of the view that where the decree of the trial Court deals with several matters, and the decree of the High Court affirms the lower Court's decree in respect of some of those matters and varies or reverses such decree in respect of other matters, then, if the proposed appeal to the Supreme Court is limited only to matters on which there has been complete agreement between the two Courts, and thel lower Court's decree has been affirmed,—in that case, leave should not be allowed for appeal to the Supreme Court unless the appeal in-volves a substantial question of law. I am also inclined to hold that the words “decree or final order” need not be treated as co-extensive in scope with the word “decision” occurring in clause 3; nor need the word “decision” be taken to connote the decision taken as a whole. This view is indicated also by the requirement of Cl. (1). The test of valuation has to be applied not only in regard to the amount or value of the subject-matter of the suit in the Court of the first instance, but also in regard to the amount or value of the subject-matter in appeal. It is necessary that the amount or value of the subject-matter of the appeal should not be below the specified limit.

26. It will be a reasonable interpretation of Cl. 3 to hold that the affirmance of the decision of the Court below, which necessitates the existence of a substantial question of law before leave can be allowed, need only be with regard to the subject-matter of the appeal, and not with regard to that part of the subject-matter of the litigation which has been placed Page: 138outside the pale of controversy for one reason or another. Sub-rules (1) and (2) of R. 4, and R. 5 of O. 20 of the CPC were referred to in the Full Bench decision of the Lahore High Court reported in ‘Wahid-Ud-Din Sheikh v. Makhanlal’, AIR 1944 Lah 458, for showing that the Code characterised the finding on each issue as a decision. No violence to the language of cl. 3 of Section 110 of the CPC would be involved if, therefore, the word “decision” is not taken as the decision of the whole case, like the words “decree or final order” appearing in the same clause. In this view, the petition cannot succeed unless it is shown that a substantial question of law is involved in the proposed appeal. It has not been contended that Article 133 alters the law in this respect or that it admits of any different interpretation.

27. Mr. Barua has not indicated to us any question of law which arises in the appeal & which may be characterised as substantial. In these circumstances, the petition must fail as we have come to the conclusion that the petitioner cannot appeal as of right. The petition is dismissed. We make no order as to costs.

Deka, J.:— I agree.

28. Petition dismissed.