Thom, C.J, Collister and Ganga Nath, JJ.:— This is a defendant appellant's application for leave to appeal to the Privy Council.

The suit against the defendant was one for specific performance of a deed of assignment of certain mortgagee rights. The defendant along with others agreed to sell certain mortgagee rights to the plaintiff for a sum of Rs. 52,000 on the 16th of December, 1928. Upon that date the plaintiff paid half the purchase price, namely Rs. 26,000. For reasons which it is unnecessary to mention in disposing of this application the deed of assignment was never completed. The plaintiff in his plaint prayed for an order against the defendant to execute the deed of assignment and in the alternative for a refund of the amount paid with interest.

At a late stage in the proceedings in the trial court the plaintiff withdrew his prayer for an order for specific performance. In the result the trial court decreed the suit for Rs. 26,000 plus interest at the rate of 6 per cent. The defendant appealed.

This Court affirmed the decision of the trial court in regard to the defendant's liability to refund the sum of Rs. 26,000. It, however, reduced the rate of interest from 6 per cent, to 4 per cent. At 6 per cent, the liability in respect of interest amounted to Rs. 18,700 and at 4 per cent, to Rs. 12,380. As a result of the modification of the trial court's decree, therefore, the liability of the defendant appellant was reduced by Rs. 6,320.

In support of her application for leave to appeal it was contended for the appellant that the decision of the trial court had not been affirmed by the High Court and that therefore she was entitled to leave to appeal in virtue of the provisions of section 110 of the Code of Civil Procedure. Under this section the parties are not entitled to appeal to the Privy Council “where the decree or final order appealed from affirms the decision of the court immediately below the court passing such decree or final order” unless the appeal involves some substantial question of law.

It was conceded by learned counsel for the applicant that no substantial question of law was involved in the present case.

There can be no doubt that the decree of the High Court did not completely affirm the decision of the trial court. In one important respect the decision of the High Court modified the decree of the trial court. As a result of the modification the appellant was relieved of the liability amounting to Rs. 6,320.

It was contended for the plaintiff respondent that there had in fact been no substantial modification in the decision of the trial court so far as the main questions in issue in the suit were concerned and further that such modification as had been effected by the High Court was in favour of the appellant. In these circumstances it was urged for the respondent that the appeal did not comply with the provisions of section 110 of the Code of Civil Procedure and accordingly the application for a certificate under that section should be refused.

From both sides of the Bar we had extensive citation of authority upon the question raised. In our judgment, however, it is unnecessary to refer in detail to the decisions cited by counsel. The question in issue in the present application has, in our judgment, been concluded by the decision of the Privy Council in the case of Annapurnabai v. Ruprao (1924) I.L.R 51 Cal. 969. In that case the relevant facts were that the trial court had awarded a widow Rs. 800 per annum as maintenance. This sum was increased to Rs. 1,200 per annum by the High Court. The widow's claim for maintenance in her defence was for Rs. 3,000. In these circumstances the Privy Council held that the widow was entitled to appeal to the Privy Council against the decree of the High Court. In the memorandum of appeal apparently the appellant Had sought to challenge the concurrent findings of the courts below on other points. In the course of the discussion Page: 183before the Board, however, counsel for the appellant intimated that the appeal be confined to the question, as to the amount of maintenance to which the appellant was entitled. The judgment of the Board is in the following terms: “In the opinion of their Lordships the contention of the petitioners' counsel as to the effect of section 110 of the Code of Civil Procedure is correct, and the petitioners had a right of appeal. They should have special leave to appeal, but it should be limited to the question as to the maintenance allowance.”

The question as to whether the Privy Council intended to hold that the appellant was not entitled to challenge the decision of the High Court on the points upon which there were concurrent findings is one of considerable difficulty and one which has been the subject of extensive discussion in a number of cases to which we were referred in the course of argument. We do not consider it necessary to pronounce upon this point. It may well be that the Privy Council were in doubt as to whether an appeal lay against the concurrent findings of the courts below, but inasmuch as the respondent was not represented before the Board they preferred to express no opinion upon that matter, more especially as counsel for the appellant had intimated that he wished to restrict the appeal to the question as to the amount of maintenance to which the appellant was entitled. Be that as it may, the Privy Council did decide that an appellant is entitled to challenge the decision of a High Court even if the High Court has modified in his favour a decision of the trial court where the amount involved is Rs. 10,000 or upwards. In the case before the Privy Council the capitalized value of the difference between what was claimed by the widow and what was allowed by the High Court exceeded Rs. 10,000 in value. Now in the present case the value of the subject matter in issue is clearly Rs. 12,380 at least. The defendant denies liability for interest and since the decision of the trial court in regard to the extent of the liability has been Page: 184modified by the High Court the defendant in our judge merit is entitled to a Certificate under section 110 of the Code of Civil Procedure. The decision of the Privy Council in Annapurnabai v. Rupprao (1924) I.L.R 51 Cal. 969 in our judgment concludes the matter in favour of the applicant.

Learned counsel for the respondent relied upon two decisions of this Court, Wiqar Ali Khan…(Defendant); v. Narain Das…(Plaintiff).* I.L.R [1939] All. 443, and Sri Narain Khanna…Applicant; v. Secretary Of State…Opposite Party. [1939] A.L.J 736. In the former case it was decided that where a suit brought for the enforcement, of a mortgage was decreed by the filial court and on appeal the High Court, holding the mortgage to be valid, modified the decree of the trial court to the extent of reducing the interest from 15 per cent, to 12 per cent, but the amount of variation of the decree by the High Court in favour of the appellant was less than Rs. 10,000, there were concurrent findings of both the courts in regard to the validity of the mortgage and therefore no appeal would lie to the Privy Council. In the course of the judgment in this case the decision of the Privy Council in Annapurnabai v. Ruprao (1924) I.L.R 51 Cal. 969, was discussed and Bennet, J., observed as follows: “Now it is to be noted that the special leave to appeal was limited to the question of maintenance. Learned counsel argues that this limitation was imposed solely at the request of counsel for the applicants. We do not think that this can be deduced from the ruling. It appears to us that their Lordships imposed this restriction because they considered that it should be imposed. The case therefore is no authority for the present application in which the applicant desires to raise a question on which there have been concurrent findings by the two courts. Moreover, in the present case the question of interest is not of sufficient value to amount to Rs. 10,000 and therefore leave to appeal on the question of interest alone could not be granted.”

It is to be observed that this decision does not support the respondent's argument. The value of the question Page: 185in issue, namely the question as to interest, was below Rs. 10,000. In that respect therefore the case is to be distinguished from the case of Annapurnabai v. Ruprao (1924) I.L.R 51 Cal. 969. We do not agree, however, with the observation that in the case before the Privy Council the Board imposed restriction as to the appeal because drew considered that it should be imposed. Whether the Privy Council imposed the restriction because it should be imposed or whether they imposed it because counsel for the applicant had intimated that he proposed to restrict the appeal to the question of maintenance is not at all clear from the terms of the judgment of the Board.

The latter case of Sri Narain Khanna…Applicant; v. Secretary Of State…Opposite Party. for India [1939] A.L.J 736 clearly supports the contention of the respondent. In that case the facts were that in a land acquisition case the District Judge had awarded to the applicant whose land was acquired under the Land Acquisition Act compensation amounting to Rs. 26,238. The High Court in appeal awarded Rs. 9,902 more. The amount claimed by the plaintiff before the District Judge and before the High Court was over Rs. 10,000. In these circumstances it was held that no appeal lay in view of the terms of section 110 of the Code of Civil Procedure. We find it impossible to reconcile this decision with the decision of the Privy Council in Annapurnabai v. Ruprao. On the principle of the Privy Council decision, in our judgment an appeal did lie to the Privy Council. The decision of this Court, therefore, in Sri Narain Khanna…Applicant; v. Secretary Of State…Opposite Party. for India [1939] A.L.J 736 can no longer be considered to be good law.

Learned counsel for the respondent contended drat the appellant's appeal to the Privy Council should be confined to the question of interest. This is not a matter for us to decide. The only question we have to consider is whether the provisions of section 110 have been complied with. In our judgment we think we must grant a certificate for leave to appeal. It is Page: 186for the Privy Council to decide whether the appellant is entitled to challenge the decision of the High Court upon the other issues on which there are concurrent findings.

For the reasons we have given we hold that the defendant is entitled to appeal to the Privy Council. We accordingly grant a certificate prayed for. The appellant is entitled to her costs.