1. This is an application of the Bengal Nagpur Railway Company Limited for leave to appeal to His Majesty in Council. It appears that a suit was brought against them by the plaintiffs now respondents to recover a sum of Rs. 1,66,493 odd on account of the price of the work done by the plaintiffs as members of a joint Mitakshara family for a certain construction known as Amda-Jamda branch of the said railway. That suit was decreed in part by the trial Court. There were appeals and cross-appeals against this decision to this Court. As a result of the appeal by the Railway Company the decree against them was reduced to a certain extent. The contention of the Railway Company is that they are not at all liable for any amount claimed in the suit, and so the Railway Company is not satisfied with the reduction of the claim against them by this Court.
2. The decree of this Court is more (in) their favour than the decree made by the Court of first instance. The company have accordingly applied for leave. One of the points for consideration which arises is as to whether the High Court judgment is to be regarded, as a judgment of affirmance seeing that the decision reducing the amount of claim against them to a certain extent was really a decision of affirmance of the judgment of the Court below with reference to the amount claimed less the amount ultimately decreed by the High Court against the company. The question really arose in view of a previous decision of this Court in Raja Sree Nath Roy v. Secy, of State (1904) 8 CWN 294 where it was held in circumstances somewhat similar to the present that the decree was really a decree of affirmance and leave could not be granted unless a substantial question of law arose with regard to the application. That case has been considered by Sir George Rankin, O.J., in Narendra Lal v. Gopendra Lal 1927 Cal 543. The facts in Raja Sree Nath Roy v. Secy, of State (1904) 8 CWN 294 were that the lower Court Judge gave an award of compensation and the High Court increased that amount. The applicant desired that the said amount might be still further increased, and it was held that the two Courts were at one on the only matter which was going to the Privy Council viz., whether beyond the amount awarded by the High Court the applicant had any claim. As has been pointed out by Sir George Rankin, C.J. that case is the origin of the doctrine that the language of Section 110 of the Code is to be construed with reference to the subject-matter in appeal to the Privy Council.
3. The reasoning of that case is that a decree which merely dismisses the appeal or confirms the decree of the immediate Court below is not the only decree of affirmance for the purposes of an appeal to the Privy Council. It has been held in a later decision of the Privy Council in Anna Purna Bai v. Ruprao 1925 PC 60 that the rule which originated in the doctrine which we have just enunciated in the case of Raja Sree Nath Roy v. Secy, of State (1904) 8 CWN 294 was erroneous. In view of this decision of the Privy Council we are of pinion that the decree of this Court is not a decree of affirmance. Other authorities have been cited before us to which reference may be made. We have been referred to a decision of the Patna High Court of Chief Justice Sir Courtney-Terrell in Homesvar Singh v. Kameshwar Singh Bahadur 1933 Pat 262 where the same view was taken. The learned Chief Justice made this pertinent observation which may be usefully quoted here:
It is immaterial whether the effect of the modification is in favour of the appellant or adds to his detriment that is the effect of the wording of the section. Had the legislature chosen to lay down a criterion of the right of appeal depending upon whether the appellant would suffer by the modification or not, it Would have said so.
4. Reliance has been placed on behalf of the appellants on the case of Annapurna with reference to the observations of the Judicial Committee to which reference has already been made. In this view the judgment of the High Court is not a judgment of affirmance and there is no dispute with regard to the value of the appeal to His Majesty in Council. So we are bound to grant certificate that the case fulfills the requirements of Section 110, Civil P.C. The certificate is accordingly granted.
5. I agree.