1. This is an application by the pltf. for leave to appeal to the Supreme Court under S. 109, Civil P. C. from a judgment & decree of an appellate bench of this Court modifying the decree of the trial Court.

2. The suit was for redemption of a usufructuary mortgage for a sum of Rs. 7,500. There was also a claim for mesne profits, the claim for the period antecedent to the institution of the suit; being tentatively valued at a sum of RS. 250.

3. The pltf.s case is that he made a deposit of the mortgage money under s. 83, T. P. Act, & although a written notice of the deposit was duly served on the mortgagees, they did not give up possession &, therefore, their possession of the mortgaged property, after the service of notice, was wrongful.

4. The trial Court decreed the suit with mesne profits, holding that the deposit was sufficient & the possession of the mortgagees from the date of the service of notice under s. 83 was wrongful, & ordered mesne profits to be ascertained by the appointment of a Commissioner. The mortgagees came up in appeal to this Court & a division bench reversed the decree of the trial Court with regard to mesne profits & allowed a lump sum of Rs. 1000 in lieu thereof.

5. The judgment of this Court being one of reversal, only two conditions under S. 110, para. we have got to be fulfilled, namely, (1) the subject-matter of the suit in the Court of first instance is Rs. 10,000 or upwards, & (2) the amount or value of the subject-matter in dispute on appeal is the same sum or upwards. It is contended by Mr. Misra that the subject-matter of the suit in the Court of first instance was Rs. 7,500, the amount secured under the mortgage, & a further sum of RS. 250 tentatively claimed as mesne profits; therefore, the first condition of S. 110, para.1 Civil P. C. has not been fulfilled. As Rs. 250 was claimed only tentatively as mesne profits, this Court, by its order dated 25-9-1950, directed the learned Subordinate Judge to hold an enquiry for the ascertainment of the actual mesne profits & give a rough estimate thereof for the purpose of valuing the suit & the appeal to the Supreme Court. The learned Subordinate Judge, after enquiry, has held that, as there was a scramble for possession in 1351 Fasli, the land in suit was not. cultivated in that year &, therefore, the question of assessment of mesne profits for that year could not arise. But he held that Rs, 6,000 per year may be taken as a fair estimate of mesne profits per year for the years 1352 & 1353 Fasli.

6. It is conceded that 1351 & 1352 Fasli would be the period antecedent to the institution of the suit. Therefore, Rs. 6,000, as found by the learned Subordinate Judge to be the amount of mesne profits payable for the year 1352 Fasli, if added to the mortgage money, namely, RS. 7,500 will make the value of the subject-matter of the suit in the Court of first instance upwards of Rs. 10,000 and thus the first condition of the first para, of S. 110 is fulfilled. Mr. Misra further argued that, although the first condition of S. 110, para, 1, is fulfilled, the second condition is not satisfied because the value of the subject-matter in dispute on appeal is only Rs. 6,000, the amount which has been ascertained to be the mesne profits for the year 1352 Fasli. We think there is no substance in this argument. In determining the value of the subject-matter in dispute on appeal, we have to take into account mesne profits not only for the period antecedent to the suit but also for subsequent period up to the date of the decree of the High Court. This, will, in any case, include the mesne profits for 1352 & 1353 Fasli, even leaving out 1351. According to the report of the learned Subordinate Judge, the mesne profits for 1352 & 1353 Fasli may be taken to be Rs. 6,000 per year. For these two years only the amount will be Rs. 12,000. Therefore, the amount or value of the subject-matter in dispute on appeal is more than Rs. 10,000. Thus both the conditions which are required by para, 1 of s. 110 have been fulfilled.

7. Mr. Misra has lastly urged that the case is governed by the provisions of Art. 133 (1), Adhere-fore, the amount or value of the subject-matter of dispute in the Court of first instance as well as on appeal ought to be not leas than Rs. 20,000. An examination of the provisions of Arts. 133 & 185 shows that there is no substance in this contention. The decree sought to be appealed from was passed on 31 8 1949, & the application for leave to appeal was filed on 30.11 1949, when the provisions of Ss. 109 & 110, Civil P. C. were in force. As soon as the judgment was pronounced & the decree made, the petitioner, as an aggrieved party, had a right to prefer a direct appeal to His Majesty in Council under the provisions of ss. 109 & 110, Civil P. C. But after the passing of the Indian Independence Act & before the commencement of the Constitution, the jurisdiction of the Federal Court was enlarged & the appellate jurisdiction of the Privy Council in Civil Cases was transferred to the Federal Court by the Federal Court (Enlargement of Jurisdiction) Act (Act I of 1948), which came into force on the first day of February 1948. Under this Act, therefore, appeals in all civil cases from which a direct appeal could have been carried to His Majesty in Council either with or without special leave could lie to the Federal Court under the provisions of Civil P. C. 1908. The present application was filed for leave to appeal to the Federal Court. Now under the Constitution, jurisdiction & powers which were exercisable by the Federal Court immediately before the commencement of the Constitution have vested in the Supreme Court under Art. 135 & it is by virtue of this Article that the jurisdiction in respect of the present case now vests in the Supreme Court. And if jurisdiction & powers are exercisable by the Supreme Court under Art. 135. the requirements of S. 110, Civil P. C have to be fulfilled as to the value or amount & not the requirements of Art. 133 of the Constitution. This latter Article cannot apply where the right to appeal accrued before the Constitution came into force. A similar point was considered in an unreported case of this Court, Ramkumar Das v. Jagdish Chandra, S. C. A. NO. 3 of 1949, D/. 4-4.1950 & it was held that Art. 133 has no application in such a case.

8. We, therefore, direct that a certificate be issued that as regards amount of value & nature the case fulfils the requirements of s. 110, Civil P. C. The petitioner is entitled to costs; hearing fee five gold mohurs.