Bhagwan Singh v. Allahabad Bank Limited

Gokul Prasad, J.:— This is an application for leave to appeal do His Majesty in Council. The suit out of which this application has arisen, was brought by the Allahabad Bank, Limited, against the defendant applicant for recovery of Rs. 61,000 and did on the basis of sixteen Hundis drawn by one Seth Hansraj and alleged to have been accepted by the defendant's gomasta Baba Lal. There were also several other salts brought by various plaintiffs against this vary defendant on different Hundis. There was one defence common to all the suits, namely, the Babu Lal was not authorised by the defendant applicant to sign or accept Hundis for him. In some of these cases, the lower Court, the Subordinate Judge of Agra, accepted the defendant's contention and in others it did not do go. The loging party appealed to this Court. By consent of parties the evidence given in such of the suits was considered as a whole and this Court was asked to decide the above question of fact on the evidence. In the result, this Court come to the conclusion the defence set up by the applicant was not correct and has decreed the claim of the plaintiffs in She various suits with the result the defendant applicant has lost in all.

2. In Privy Council appeal No. 9 the amount of the subject member in dispute was Rs. 26,000 in the curt below and the some is the amount in dispute in the appeal to His Majesty in Council. In that case the court below had sustained the defence, and this court having come to a different conclusion taking the whole of the evidence given in the various cases into account, his reveled the decree of the Subordinate Judge.

3. In the case the applicant had a right of appeal as a matter of course and we have ??? the case was a fit case for appeal to His Majesty in Council. In the present case, as we have stated above, the valuation in the court of first instances was over Rs. 61,000, and the valuation of proposed appeal to His Majesty in Council is above Rs. 10000. What happened in this case was that the first court decreed the plaintiff's claim for about Rs. 41,000 On appeal this court confirmed the finding of the first court as to Babu Lal's competency to sign on behalf of the applicant but in the result allowed a deduction of Rs. 6000 in favour of the applicant because of an admitted mistake in the decree of the lower court, but saddled him with a liability for in for in ??? excess of what the decree below had awardad. The net result was Shaft the decree of the court below was modified to the prejudice of the applicant by nearly eight thousand rupees. This application has been opposed on the ground the decree was really one which affirmed the decree of the court of first Instance and therefore having regard to the case of Raja Sree Nath Roy Bahadur v. Secretary of State (1). It is contended on behalf of the opposite party the this is really a decree which affirms the decree of the lower court. We do not see our way to agree to this contention. This view of ours is supported by the case of Narpat Singh v. Kalka Bux Singh (2), which follower an earlier decision of that court in Thakur Baldeo Singh v. Thakur Lalji Singh (3) Mr. Chemiar, as he then was Judicial Commissioner, as reported to have said at page 67 as follows:—

“There remains the question whether the applicant is entitled to appeal because the decree of this court did cut affirm the decision of the court below. The respondents rely upon the decided of the Calcutta High Court in Raja Sree Nath Ray Bahadur v. Secretary of State . With all the respect for the learned Judges who decided the case it appears to me the their decision was wrong for the decree of the High Court plainly modified the decree of the District Judge. This court has in two recent cases declined to follow the ruling”.

4. It can by no stretch of imagination be said the a decree which modifies the decree of the lower court, except perhaps in the master of costs only, with which we are not concerned in the present case, is a decree of affirmance. Their Lordships had to consider the provisions of section 596 of the old Code of Civil Procedure, Act XIV of 1882, which corresponds to the present section 110 of the CPC, Act V of 1909, and held the word “decision” used in the section has the same meaning as a decree. When there is to express provision of the law giving a right of appeal in cases where the decree of the highest court in India does not affirm the decree passed by the lower court. We are not entitled to consider the extent to which the said decree has been modified or not. We have stated above the in the present case the decree of this court has modified the decree of the court below to the prejudice of the applicant. We are therefore in perfect accord with the view of the Oudh Judicial Commissioner's court and are of opinion the leave to appeal should be earned in the present case. We accordingly certify the this case fulfils the requirements of section 110 of the Code of Civil Procedure, Act V of 1908, as regards the value and nature of the subject matter of the suit, as the decree appealed from does not affirm the decree of the court below.

5. Certificate given.