1. This is an application under Section 110 of the Code of Civil Procedure for permission to appeal to His Majesty in Council. The suit was brought on behalf of minor plaintiffs against the defendant, as executor under their father's will, for an account of his management of the estate. The valuation of the relief claimed was over Rs. 10,000, so that the case fulfils the first condition prescribed by the section, that 'the amount or value of the subject-matter of the suit in the Court of first instance must be Rs. 10,000 or upwards'. We are asked to hold that the second condition is also satisfied, that 'the amount or value of the subject-matter in dispute on appeal to His Majesty in Council' is the same sum or upwards.
2. The decision of this point depends upon whether the plaintiffs, who are the petitioners, are entitled to include in their reckoning interest accruing subsequent to suit. The Court of first instance gave a decree which, after correction of an error, amounted to Rs. 3,859-14-10. This sum was the subject-matter of the defendant's appeal to this Court, and the plaintiffs presented a memorandum of objections claiming, in addition to it, a sum disallowed by the trial Court which, after deducting a certain amount given up, stood at Rs. 2,118-0-8. The result of this Court's decree was that the whole of the plaintiffs' claim was disallowed, and they were found liable to pay the defend' ant Rs. 173-7-11. The plaintiffs now desire to appeal to the Privy Council in respect of the three sums above specified, totalling Rs. 6,151-7-5, and to the amounts of the two former they claim to add a sum of Rs. 5,072-10-10, being interest from 31st January, 1918, when payment, it is said, was due from the defendant, up to 19th April, 1932, the dale of this Court's decree. If this course is permitted, the value of the appeal will be well above Rs. 10,000, vis., Rs, 11,224-2-3. If interest accruing subsequent to the institution of the suit is to be excluded, the value will be below the appealable minimum.
3. The learned advocate for the petitioners puts his case in this way: if the plaintiffs had fully succeeded both in the appeal and in the memorandum of objections before this Court, they would have obtained a decree which, with interest at 6 per cent, up to the date of that decree, would have exceeded Rs. 10,000; and from this decree the defendant could have appealed to the Privy Council. It must follow that the plaintiffs, who have been denied the whole of this sum, have equafly a right of appeal, since it would be inequitable and anomalous to withhold from the one a right which would, in the converse case, have been conceded to the other.
4. It is no doubt true that the value of a defendant's appeal is the amount of the decree of this Court, and that where interest up to its date is included the appellant is entitled to a certificate if the whole sum thus composed reaches the minimum figure of ten thousand rupees. That was decided by the Privy Council in Gooroopersad Khoond v. Juggutchunder (1860) 8 M.I.A. 166, a case followed by their Lordships in Bank of New South Wales v. Owston (1879) 4 A.C. 270. But it does not necessarily follow that the converse proposition, as it is sought to apply it to a plaintiff's appeal, is true. The only case to which our attention has been drawn as directly deciding this point against a plaintiff is Ram Kumar v. Muhammad Yakub I.L.R. (1920) All. 445. Apparently the decision in Moore's Indian Appeals was not cited before that Bench, but only the New South Wales case (1879) 4 A.C. 270, which the learned Judges distinguished on the ground that whereas the law of New South Wales gives a decree-holder a statutory right to interest, in this country the grant of it is discretionary to the Court. Such a ground for distinction would not, of course, apply to the case in Moore's Indian Appeals, which proceeded upon no more than the fact that the decree comprised interest, and not upon any question of the decree-holder's right to claim it. We think that the real difference upon which the Allahabad Bench might have based its judgment is that, as here, they had in question a plaintiff's and not a defendant's appeal. A defendant must appeal against the whole decree standing against him. A plaintiff can do no more than appeal against the dismissal of his claim, as that claim stood at the date of his suit. The distinction is observed in assessing appeals of either kind to Court-fees, a plaintiff who appeals against the dismissal of his suit, as has been held in Srinivasa Rao v. Ramaswami Chetti : (1900)10MLJ144 and Vithal Hari Athavle v. Govind Vasudeo Thosar I.L.R. (1892) Bom. 41 not having to include in his valuation interest accruing subsequent to suit, whereas a defendant must appeal against the whole decree, including any such subsequent interest. The real ground for this difference is that whereas a defendant has to get rid of any sum, whether , principal or interest, decreed against him, a plaintiff cannot insist upon the award of post-plaint interest, as something to which he possesses a legal right. Its grant is, under Section 34 of the Code of Civil Procedure, discretionary to the Court, which may, if it thinks fit, ' order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree '. It is to be observed that not only is the question whether or not to award interest, but also the question at what rate to award it, left to the Court's discretion. It has, it is true, become in practice the rule to adopt the rate of six per cent, per annum, but nowhere is that rate prescribed, and there is nothing in law to prevent any Court from awarding some other rate. In 1860, as we see from Gooroopersad Khoond v. Juggutchunder (1860) 8 M.I.A. 166 the Court rate was 12 per cent.; in the New South Wales' case (1879) 4 A.C. 270 it was 8 per cent. The most then that a plaintiff-appellant can urge in support of his claim to include post-plaint interest at six per cent, in his valuation is that he is proceeding upon the assumption that a practice which considerations of convenience tend to make uniform would be observed in his case in the event of his success. And it must follow that, since there is no rule of law enabling him to enforce the award of interest, it cannot, in any strict legal sense, be deemed to be part of his claim against the defendant, or, to employ the language of Section 110, Civil Procedure Code, part of- 'the subject-matter in dispute on appeal to His Majesty in Council'. If the plaintiff's suit is dismissed by this Court on appeal, the maximum value to be attached to his appeal to the Privy Council is the value of his suit as stated in the plaint and accepted by the trial Court; and it can make no difference whether that Court allowed the claim in whole or in part or dismissed it altogether.
5. For these reasons we conclude that no appeal such as the plaintiff proposes to prefer will lie, and it is unnecessary to decide the further question raised, whether or not that part of this Court's decree which affirms the decree of the trial Court should be disregarded. We dismiss the petition with costs.