Lawrence H. Jenkins, K.C.I.E., C.J. and N.R. Chatterjea, J.
1. This is an application by way of a petition to the Court under Order XLV, ride 2 of the Code of Civil Procedure, 1908, by one desiring to appeal to His Majesty in Council.
2. A preliminary objection has been raised that the application is out of time, and in support of this it is argued that Clause (2) of Section 12 of the new Limitation Act does not apply to an application for a certificate under Order XLV of the Code. But the answer to this is furnished by the phraseology of Article 179 of the first Schedule of the Limitation Act, which describes an application of this kind as an application for leave to appeal to His Majesty in Council. It is manifest, therefore, that Clause (2) of Section 12 of the Limitation Act does apply to applications such as the present, and the objection fails.
3. As the decree from which it is sought to appeal is one of reversal, the only question is whether the amount or value of the subject-matter in dispute is of the requisite amount, or whether it involves directly or indirectly some claim or question to property of the value of Rs. 10,000.
4. The facts are these: The appeal now before us relates to rent, and it is said that the tenants have been evicted from a part of the land included in the tenancy, and the result has been that the High Court has decided that the rent is suspended and no claim therefore lies as long as the eviction continues.
5. The amount of the rent is Rs. 1,300 and odd, and it is claimed on the part of the applicant that if this sum of Rs. 1,300 is capitalized, it will reach a sum of more than Rs. 10,000. Further, it has been said on the part of the applicant that the eviction has been brought about by the creation of leases in favour of the tenants in perpetuity which cannot be brought out, and therefore the dispossession must continue for ever. It is accordingly claimed that the amount of the capitalized value of Rs. 1,300 would be more than Rs. 10,000; but the other side says that the capitalized value falls far short of that amount.
6. We have not before us the materials necessary for the decision of this question, and we must therefore utilize the provisions of Rule 5, Order XLV of the Code, and refer the dispute to the Court of first instance to determine the amount or value and return its report to this Court.