1. These are two applications for leave to appeal to His Majesty in Council against a judgment and decree of this Court, dated 29th September 1942, by which a judgment and decree of the Additional District Judge of Meerut, dated 12th December 1934, in a suit for partition of property was affirmed excepting in the matter of costs. The suit out of which these applications for leave have arisen was instituted on 18th January 1925, for partition of certain alleged joint family property of considerable value'. The parties to the litigation were near relations. On 4th March 1926, a consent decree was passed in the suit which was partly preliminary and partly final. In pursuance of the preliminary decree a commissioner was appointed to partition the property, who submitted his report on 5th September 1932. Objections were taken to this report both by the plaintiffs and by the defendants. On 12th December 1934, the Additional District Judge of Meerut after disposing of these objections passed a final decree for partition of the property and by this decree the plain-tiffs were also directed to pay to the defendants a sum of Rs. 10,286 on account of the costs of the suit. Against this decree of the Additional District Judge of Meerut, the plaintiffs made first appeal to this Court and the defendants filed cross-objections. By a judgment of this Court, dated 29th September 1942, both the plaintiffs' appeal and the defendants' objections were dismissed, but the parties were directed to bear their own costs both in this Court and in the Court below. The result of the judgment and decree of this Court was that the decision of the Court below was affirmed in all matters which were involved in the suit, but the order of costs passed against the plaintiffs by the Court below was varied by this Court in plaintiff's favour and against the defendants.
2. The plaintiffs and the defendants have now both made applications for leave to appeal to His Majesty in Council, which are now before us for disposal. There is an office report in relation to the defendants' appeal that it is 96 days beyond time. It is stated on behalf of the defendants that if time were excluded for obtaining certified copies of the judgment and decree of this Court which law allows them, their application for leave would be within time. Ordinarily it would have been necessary to direct the defendants to produce the certified copies of the judgment and decree which they had obtained before the office of this Court and to get a report from the office. But in view of the contention of the defendants which we are presently going to notice, it is not necessary to wait for the office report. The decree of this Court undoubtedly varied the decision of the Court below in the matter of costs and this variation was against the defendants and in favour of the plaintiffs and the amount of costs which was given by the trial Court and which was disallowed by this Court exceeded a sum of Rs. 10,000. The defendants could therefore have contended that they could appeal to His Majesty in Council and their contention is that a variation of the decree of the trial Court by this Court in the matter of costs only while affirming the decision with regard to the subject-matter of the suit gives no right of appeal, whether the variation be in favour of the party applying for leave or against it, and the defendants do not wish to proceed with their application for leave if the application of the plaintiffs for leave to appeal be rejected.
3. It becomes therefore necessary to determine whether the plaintiffs have got any right of appeal under Section 110, Civil P. C. Under that section when a decree of this Court affirms a decision of the Court below an appeal would lie only if it involves a substantial question of law. On the question that when a decree of this Court affirms a decision of the Court below substantially but makes a slight variation in favour of the person who is seeking to appeal to His Majesty in Council whether a decree in such a case is a decree of affirmance or a decree of variance, there is some conflict of judicial authority. In a recent case, Jaggo Bai v. Harihar Prasad Singh : AIR1941All66 , decided by a Full Bench of this Court consisting of Thom C. J., and Collister and Ganga Nath JJ., it was held that a variation of the decision of the Court below by this Court even in a matter in favour of the per-son who is seeking leave to appeal to His Majesty in Council would make a decree of this Court not a decree of affirmance but a decree of variance and if the subject-matter of variance exceeded Rs. 10,000 the applicant would have a right of appeal. But the question whether the appeal would be confined to the subject-matter of variance or would also extend to those matters upon which both Courts have agreed and whether an appeal would lie or not in case the subject-matter of variance was below Rs. 10,000 were not decided in that case. In Nathu Lal v. Raghubir Singh : AIR1932All65 , which is also a decision of a Pull Bench of this Court, consisting of Sulaiman A. C. J., and Mukerji and Boys JJ., the late Sir Shah Sulaiman has thus explained a decree of affirmance :
The language used in Section 110, Civil P. C., is simple and makes it clear that if the decree appealed from affirms the decision of the Court below there would be no right of appeal unless a substantial question of law is involved. There is no reason why we should introduce new words in the section and say that the expression 'affirms the decision of the Court below' necessarily means 'affirms the decision substantially' or means 'affirms the decision on grounds other than costs.' If the decree of the Court below has been varied, no matter to what extent, the decree cannot be one of affirmance.
4. These observations in so far as they express the view that a variation of the order of costs is also a variation of the decree are in the nature of an obiter. 54 ALL. 146 in which these observations were made was a case in which a portion of the subject-matter of the suit was varied against the person who was seeking an appeal to His Majesty in Council though the subject-matter of variation was below Rs. 10,000 and other members of the Bench did not express any view on the question whether a variation with regard to costs would render a decree of this Court a decree of variance. On the other hand, the Calcutta, Madras, Patna and Oudh Courts have consistently held that a variation in the matter of costs only is not a decree of variance and gives no right of appeal: see Chaitanya Charan v. Mohammad Yusuf ('22) 9 A. I. R. 1922 Cal. 316; Vadivelammal v. Bajaratnam Mudaliar A. I. R. 1923 Mad. 30; Sabitri Thakurain v. Suraj Mohan Thakur ('33) 20 A.I.R. 1933 Pat. 703 and Mujibur Bahman Khan v. Sha-traunji Ji ('34) 21 A.I.R. 1934 Oudh 433.
5. Very often the decrees of the Courts below provide for a time in which certain act is to be done by parties which time generally expires during the pendency of the appeal or before the appeal is filed and very often when the appeals are dismissed against such decrees, applications are made for extension of time provided by the decrees of the Courts below and such extensions are usually granted; very often having regard to the conduct of the parties and other considerations which arise in the case while the decision of the Court below is affirmed in appeal, the order of costs is varied. Can it be said in such cases that the decree of the High Court is not a decree of affirmance of the decision of the Court below and is it open to a person in whose favour the variation in the above circumstances has been made to appeal as of right to the Privy Council and open up before the Privy Council the controversy relating to the subject-matter of the suit on which there are concurrent findings? No doubt, the language of Section 110 is wide enough to cover the case of any variation, but we are of opinion that the language should be restricted to variation with regard to the subject-matter of the suit and should not be extended to those variations which are not strictly the subject-matter of the suit and which are matters in the discretion of the Court. For the purpose of the valuation of appeal to His Majesty in Council, costs are not taken into consideration and are treated as extraneous to the subject-matter of the suit.
6. In the case before us the decree of this Court has affirmed the decision of the Court below except in the matter of costs which exceeded Rs. 10,000; the variation is against the defendants and in favour of the plaintiffs. In the grounds of appeal which are set out in the two petitions for leave to appeal to His Majesty in Council neither the plain. tiffs nor the defendants have taken any specific objection to the order of costs. The grounds of appeal relate to other matters which were the subject matter of controversy in the two Courts and upon which the decree of this Court affirms the decision of the Court below. We do not think that under the cover of a variation of the order of costs the plaintiffs are entitled to take an appeal to His Majesty in Council as of right with regard to the subject matter of the suit about which the two Courts have given a concurrent decision. Leave therefore could only be granted to the plaintiffs if there be some substantial question of law involved in the case. The case raises a question of the construction of the preliminary decree and also raises a question of the jurisdiction of the Court which prepared the decree, but we do not think that the questions of law which arise in the case are substantial questions of law within Section 110, Civil P. C. The result is that both these applications are rejected but we direct that the parties shall bear their own costs in both of them.