Courtney-Terrell, C.J.This is an application for leave to appeal to his Majesty in Council from the judgment of a Bench of this Court in a suit in which the plaintiff claimed a mortgage decree for a sum of over five lakhs of rupees.

2. The lower Court granted a decree but when the case came to this Court this Court modified the decree as to a part of the claim amounting to roughly Rs. 90,000 and as to that Rs. 90,000 this Court held that plaintiff was entitled not to a mortgage decree but to a money decree. The appellant contends that the case comes within Section 110, Civil P.C., in that the decision of this Court does not affirm the decision of the Court immediately below this Court.

3. In my opinion that contention is well founded and is supported by a decision of the Privy Council in the case of AIR 1925 60 (Privy Council) . Whether the judgment of this Court was a judgment of affirmance or not may clearly be seen by considering the position of the respondent in this case. Had it been the wish of the respondent to appeal he could without difficulty have claimed that the effect of the modification effected by the judgment of this Court was to deprive him of a remedy, that is to say, the remedy by way of a mortgage decree and to substitute in place of it a remedy by way of a money decree only, and the question of whether the judgment of this Court is a judgment of affirmance or not cannot depend upon whether the appellant is the plaintiff or the defendant; it depends upon whether the judgment is one affirming the judgment of the lower Court.

4. There was moreover another modification of the decree in that whereas the lower Court had under Item 6 in Schedule 3. granted a decree which covered a sum of Rs. 1,70,099 that amount has been reduced by the judgment of this Court by a sum of Rs. 5,000. 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 fight of appear depending upon whether the appellant would suffer by the modification or not, it would have said so.

5. The view we are taking is, I think, supported by the way in which the Privy Council in the case that I have mentioned dealt with the particular facts before it in which case although the appellant had positively benefited by the modification effected under the lower Courts order, he was none the less held entitled to appeal by reason of the fact that the order appealed from did not affirm the judgment of the lower Court.

6. For these reasons I would grant the certificate asked for.

Kulwant, Sahay, J.

7. I agree.