Wilson and Porter, JJ.
1. It appears to us that the objection which has been taken to this appeal must prevail.
2. If this Court has jurisdiction to entertain this appeal, it must be either by reason of the Burma Courts Act, or by reason of the provisions of the Civil Procedure Code, or both.
3. This, is an appeal from a decision of the Recorder of Rangoon. And the only section in the Burma Courts Act which could be pointed to as giving an appeal to this Court is Section 49. That section says, first, that 'there shall be no appeal from the decree or order of the Recorder passed in any original suit or proceeding where the amount or value of the subject-matter does not exceed three thousand rupees.' That excludes appeals altogether in cases under the sum mentioned. The section then goes on to say, that 'where the amount or value of the suit or proceeding in the Recorder's Court exceeds three thousand rupees and is less than, ten thousand rupees, an appeal shall lie to the High Court.' These are the only words in the section and in the Act giving this Court jurisdiction to hear any appeal from the Recorder's Court. And then follow excluding words: 'Provided that the amount or value of the matter in dispute on appeal must exceed the former sum and be less than the latter.'
4. It appears to us that the effect of this clause is to say that an appeal shall fie within certain limits, and that it shall not lie unless the matter falls within those limits. It therefore amounts to an express declaration that it is a condition precedent to the right of appeal that the suit shall be one which has an amount or value capable of being estimated in money, and that that amount or value shall fall within certain specified limits.
5. The section in the Civil Procedure Code which has been relied upon is Section 540. Now, that section does not deal with the jurisdiction of Courts. It deals with the rights of appeal given to parties And in enactments of this kind the distinction must always be remembered between sections which confer jurisdiction on Courts, and sections which confer rights on parties. In order to sustain all appeal to this Court it is necessary to show two things, that the party desirous of appealing has the right to appeal, and the Court to which he would prefer the appeal has the right to entertain it.
6. Section 540 says: 'Unless when otherwise expressly provided by this C ode or by any other law for the time being in force, an appeal shall lie from the decrees, or from any part of the decrees, of the Gourds exercising original jurisdiction to the Courts authorized to hear appeals from the decisions of those Courts.' In order to enable us under that section to hear this appeal, it must be shown that this Court is authorized to hear appeals from the Recorder's Court of Rangoon. But this Court is authorized only under Section 49 of the Burma Courts Act, that is to say, in the particular cases already referred to. And it appears to us that the words, 'the Court authorized to hear appeals,' in Section 540 of the Code, must mean, either the Court authorized to hear appeals from the Courts in question generally, which this Court is not authorized to do in respect of the Recorder's Court, or else the Court authorized to hear such appeals as the appeal in question, which has not been shown of our Court as to this appeal. Even if that difficulty were got over, there would remain another. It must appeal that it is not expressly provided by any law that such an appeal as this does not lie to this Court. But, as I have already pointed out, Section 49 provides that an appeal shall not lie from the Recorder's Court to this Court unless it is capable of a money valuation, and that money valuation falls within certain limits.
7. The distinction between suits capable of money valuation and those not capable of such valuation is one perfectly familiar in this country. It has been embodied in Act after Act, especially in the Stamp Acts and the Court Fees' Act; and a suit of this particular nature and a great many others have been treated in them as suits incapable of valuation.
8. It appears to us, therefore, that neither the Burma Courts Act nor the Civil Procedure Code gives any jurisdiction to this Court.
19. It will be right perhaps to mention the affidavit put in by the appellant in which he professes to place a pecuniary value on the society of his wife against whom he claims a restitution of conjugal rights. But that affidavit cannot alter the real nature and character of the suit, which is one not capable of being valued.
20. For these reasons we think that this appeal cannot be entertained, and must be rejected with costs.