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Babu Kamal Nath and ors. Vs. Babu Bithal Das and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All89; 64Ind.Cas.916
AppellantBabu Kamal Nath and ors.
RespondentBabu Bithal Das and ors.
Cases ReferredBhagwan Singh v. Allahabad Bank
Excerpt:
civil procedure code (act v of 1908), section 110 - privy council appeal--decree partly modified and partly affirmed--leave to appeal against portion affirmed--party prejudicially affected, right of. - - in this view the present application must fail......exceeding rs. 10,000 on the basis of a mortgage. this mortgage was denied by the defendant, the present applicant. the court of first instance decided against him and decreed the claim in full. he appealed to this court, and this court affirmed the decision of the court below upon the question of the fact and the validity of the mortgage. this court, however, reduced the rate of interest awarded against the appellant by the court of first instance. the result was that this court modified the decree of the court of first instance to the extent of about rs. 300 but that modification, so far from being prejudicial to the interest of the present applicant, was in his favour. on the ground of this modification he seeks to appeal to his majesty in council on the question of the genuineness.....
Judgment:

1. This is an application for leave to appeal to His Majesty in Council. The plaintiff in the suit claimed a large sum exceeding Rs. 10,000 on the basis of a mortgage. This mortgage was denied by the defendant, the present applicant. The Court of first instance decided against him and decreed the claim in full. He appealed to this Court, and this Court affirmed the decision of the Court below upon the question of the fact and the validity of the mortgage. This Court, however, reduced the rate of interest awarded against the appellant by the Court of first instance. The result was that this Court modified the decree of the Court of first instance to the extent of about Rs. 300 But that modification, so far from being prejudicial to the interest of the present applicant, was in his favour. On the ground of this modification he seeks to appeal to His Majesty in Council on the question of the genuineness of the mortgage, and it is contended on his behalf that, as this Court did not affirm the decree of the Court below, he is entitled, as of right under Section 110 of the Code of Civil Procedure, to appeal to His Majesty. We do not think that this contention is valid. So far as the question of the mortgage is concerned, the decision of the lower Court was affirmed by this Court and there were concurrent findings of fact against which there could be no appeal to His Majesty in Council. The modification of the decree was a modification in favour of the applicant, and as to this he certainly does not seek to appeal. nor could he appeal. Therefore, his application for leave to appeal relates in fact to the portion of the decree which was prejudicial to him but which was a decree affirming the decision of the Court below and not modifying it. We have to look to the substance and see what is the subject matter of the appeal to His Majesty in Council. In the present case the subject-matter of appeal to His Majesty in Council is, as pointed out above, that portion of the decree in respect of which the decree of this Court was a decree in affirmance of the decree of the Court below and not in modification of that decree. Therefore, in our opinion, this is not a case in which the applicant is entitled as of right to appeal to His Majesty in Council. This case is distinguishable from the case of Bhagwan Singh v. Allahabad Bank, Ld. 61 Ind. Cas. 3 : 19 A.L.J. 3 : 43 A. 220 : 2 U.P.L.R. (A) 363. There the decree was modified to the prejudice of the applicant and on that ground it was held that he was entitled to (appeal to His Majesty in Council. In this view the present application must fail. We accordingly reject it with costs. including fees on the higher scale.


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