1. This is a petition by the defendants in a suit under Order XLV, rule 2, of the Code of Civil Procedure. This Court reversed the decision of the Court below. The applicants are, therefore, entitled to appeal to His Majesty in Council if the value of the subject-matter of the suit in the Court below was Rs. 10,000 or upwards and the value of the subject-matter in dispute on appeal to His Majesty in Council is the same sum or upwards, or the decree involves directly or indirectly some claim or question to or respecting property of the like value.

2. Under a decree dated June 22nd 1907, a takhta of 8 annas was awarded to the defendants. In the present suit the plaintiffs claimed a declaration that they are entitled to a one-anna share in that takhta and a decree for separate possession of that share. They also claimed a declaration that the defendants have no mukarari right in the one-anna share. The Court below dismissed the claim. On appeal the plaintiffs' right to a one-anna share was not disputed and the only question for decision was whether the defendants had a mukarari right in the share. This Court held that the defendants had no mukarari right in the share and decreed the plaintiffs' claim as laid.

3. In their plaint the plaintiffs stated that the value of the reliefs claimed by them was Rs. 3,000 and they paid Court-fees on ten times the Government revenue of a one-anna share under section 7(V) of the Court Fees Act, The appeal by the plaintiffs was presented in the first instance to the District Judge, but that officer on the authority of the ruling in Biraj Mohini Dasi v. Chintamani Dasi (3 C.L.J. 197 : 10 C.W.N. 565) held that the value of the original suit within the meaning of section 21 of the Bengal, N.-W.P. and Assam Civil Courts Act, 1887, was Rs. 24,000, and, therefore, the appeal lay to the High Court. The memorandum of appeal was, therefore, returned to the defendants' Vakil and was presented to the High Court at Calcutta. On the constitution of this Court the appeal was transferred to this Court and was heard by this Court with the result above stated. At the hearing of the appeal the defendants did not contend that the appeal should have been heard by the District Judge. When the appeal had been allowed, a question arose as to whether costs should be calculated on Rs. 24,000, the value of the entire 8-annas takhta or on Rs. 3,000 the value of the share claimed, and at the instance of the defendants (present applicants) this Court decided that the costs should be calculated on Rs. 3,000.

4. It appears to us that whatever may have been the value of the original suit for the purposes of section 21 of the Bengal, N.-W.P. and Assam Civil Courts Act according to the decisions of the Calcutta High Court, on the correctness of which we express no opinion, the value of the subject-matter in dispute on appeal to His Majesty in Council would be the value of the one-anna share claimed by the plaintiffs. No part of the 8-annas takhta is in dispute or can be affected by the preliminary decree which has been passed, except the one-anna share the value of which can by no possibility approach Rs. 10,000, and, therefore, it cannot be said that the decree of this Court involves directly or indirectly any claim or question to property approaching Rs. 10,000 in value. In our opinion the present case is not distinguishable in principle from that of DeSilva v. DeSilva (6 Bom. L.L. 403). We agree with the decision of Jenkins, C.J., and Russell, J., in that case and we dismiss this application with costs. Hearing fee Rs. 80. The application for stay of execution is also dismissed.