Harries, C.J.This is an application for leave to appeal to His Majesty in Council. The proposed appellants claim that they are entitled to appeal as of right, as, according to them, both the value of the suit and the subject-matter of appeal to His Majesty in Council are over Rs. 10,000 and the judgment of this Court is not one of affirmance. The proposed respondent denies that either the valuation of the suit or the subject-matter of appeal to His Majesty in Council is Rs. 10,000 and further contends that on the true construction of the judgment of this Court it is one of affirmance. One of the points involved in this case is of considerable difficulty, and as there is a great conflict of authority the application has been referred to this Special Bench for determination.

2. The facts giving rise to this application can be shortly stated as follows: The plain, tiffs brought a suit for a declaration that they were the owners of certain lands in three villages set out in four schedules to the plaint and for confirmation of possession. In the alternative, it was prayed that, if it was found that the plaintiffs were not in possession, they should be given possession of the lands in question. The defendant by his defence denied that the plaintiffs were entitled to any relief and claimed that the lands in question belonged to him by reason of adverse possession over a long period of time.

3. The trial Court substantially dismissed the claim of the plaintiffs and thereupon the latter preferred an appeal to this Court. On appeal the plaintiffs claim with regard to the lands in one village Olaver was decreed but their claim with regard to the lands of the two other villages of Balarampur and Jagulaipara was dismissed though on different grounds from those upon which their claim with regard to these lands was dismissed by the trial Court.

4. The trial Court had held that the lands in these two villages no longer belonged to the plaintiffs, whereas the High Court held that the lands did belong to the plaintiffs but that they were not entitled to possession by reason of the fact that the defendant had rights over these lands in the nature of easements. The fact, however, remains that the plaintiffs claim with regard to the lands in these two villages was dismissed by this Court as it had been by the trial Court.

5. It will be convenient, in the first place, to deal with the question of valuation of the suit and of the subject-matter of appeal to His Majesty in Council. The plaintiffs originally valued the suit at Rs. 6560, and when they appealed to this Court the appeal was valued on the same basis. The office of this Court however reported that the proposed appellants had not valued certain reliefs claimed in the plaint. These reliefs were in connexion with lands set out in (ka 1) schedule and an injunction relating to the lands. When the proposed appellants were called upon by this Court to value these reliefs, the relief connected with the lands in (ka 1) schedule was thereupon valued at Rs. 860 and the injunction was valued at Rs. 3000. This brought the total value of the suit to Rs. 10,420, and the deficiency in court-fee was made good by the plaintiffs and the fees of this Court were also paid on this total valuation of Rs. 10,420. No objection was taken by the proposed respondent to this valuation and costs were awarded on the basis of such valuation. The proposed respondent has executed or is actually executing his decree for costs which have been calculated on the valuation of Rs. 10,420.

6. The proposed respondent now contends that the valuation of these two reliefs in the suit are excessive. It is said that in an earlier suit in 1920 the plaintiffs valued the injunction now valued at Rs. 3000, at Rs 250. It may well be that in the earlier suit the plaintiffs undervalued this injunction, and if there was any force in this contention that the reliefs were overvalued, one would have expected some objection to have been taken at the time when they were valued. As the present valuation of the suit was accepted without demur and a decree for costs based on such valuation actually enforced, it is not, in my view, open to the proposed respondent to contend at this stage that the value of the suit is not over Rs. 10,000. The value of the relief given to the plaintiffs in respect of village Olaver is only Rs. 160 and therefore the value of the reliefs denied to the plaintiffs is still over Rs. 10,000, namely Rs. 10,260. These reliefs constitute the subject-matter of the appeal to His Majesty in Council and therefore it must be held that the value of such subject-matter is over Rs. 10,000. I would, therefore, hold that both the value of this suit and the value of the subject-matter of appeal are over Rs. 10,000.

7. It was further urged on behalf of the proposed respondent that the decree of this Court was a decree of affirmance, whereas the proposed appellants contended that the decree of this Court, so far from affirming the decision of the Court below, actually reversed it in part. Whether the decree of this Court did or did not affirm the decision of the Court below will depend upon the construction to be given to Sections 109 and 110, Civil P.C Section 109 is in these terms:

Subject to such rules as may, from time to time, be made by His Majesty in Council regarding appeals from the Courts of British India, and to the provisions hereinafter contained, an appeal shall lie to His Majesty in Council (a) from any decree or final order passed on appeal by a High Court or by any other Court of final appellate jurisdiction; (b) from any decree or final order passed by a High Court in the exercise of original civil jurisdiction; and (c) from any decree or order, when the case, as hereinafter provided, is certified to be a fit one for appeal to His Majesty in Council.

Section 110, Civil P.C., is as follows:

In each of the cases mentioned in Clause (a) and (b) of Section 109, the amount or value of the subject-matter of the suit in the Court of first instance must be ten thousand rupees or upwards, and the amount or value of the subject-matter in dispute on appeal to His Majesty in Council must be the same sum or upwards,...and where the decree or final order appealed from affirms the decision of the Court immediately below the Court passing such decree or final order, the appeal must involve some substantial question of law.

8. The effect of these two sections is to give a proposed appellant an appeal as of right in cases where the value of the subject-matter of the suit and of the appeal are over Rs. 10,000 and the decree appealed from is not one of affirmance. On the other hand where the decree of the High Court is one of affirmance, there is no right of appeal unless the appeal involves some substantial question of law.

9. In the present case the decree of this Court reversed the decree of the trial Court in so far as it related to the lands in village Olaver, but it affirmed the Court below in so far as the decree related to the other two villages of Balarampur and Jagulaipara, and as I have stated the reliefs claimed with regard to these two latter villages were valued at Rs. 10,260.

10. The variation made by the High Court was in favour of the proposed appellants, and it was at one time thought that such variation could give no right to appeal to His Majesty in Council. Such a view, however, is no longer tenable. In AIR 1925 60 (Privy Council) to which reference will be made later, their Lordships of the Privy Council gave special leave to appeal in a case in which the High Court varied the decision of the trial Court wholly in favour of the proposed appellants.

11. This case was considered in a very recent Pull Bench decision of the Allahabad High Court: Jaggo Bai Vs. Harihar Prasad Singh, . In that case the High Court affirmed the decision of the trial Court in regard to the defendants liability to refund a sum of Rs. 26,000 as claimed by the plaintiff. It, however, reduced the rate of interest from 6 per cent, to 4 per cent. At 6 per cent, the liability in respect of interest amounted to Rs. 18,700 and at 4 per cent, to Rs. 12,380. The appellant, however, denied his liability for interest and applied for leave to appeal to His Majesty in Council.

12. It was held that the appellant was entitled to a certificate u/s 110, Civil P.C. Referring to the case in AIR 1925 60 (Privy Council) , Thorn C. J. observed at p. 67:

Be that as it may, the Privy Council did decide that an appellant is entitled to challenge the decision of a High Court even if the High Court has modified in his favour a decision of the trial Court where the amount involved is Rs. 10,000 or upwards.

13. It was, however, strenuously contended on behalf of the proposed appellants that the decree of the High Court in the present case is substantially one of affirmance. The subject-matter in dispute on appeal to His Majesty in Council is the relief with respect to the two villages, Balarampur and Jagulaipara, valued at Rs. 10,260. Both the Courts have held that the plaintiffs claim with regard to these two villages was not well-founded, and though the Courts did not give similar reasons they both agreed that the plaintiffs claim failed. That being so, it is urged that the decree of the High Court relating to these two villages affirmed the decision of the trial Court, though it must be conceded that the decree of the High Court taken as a whole did not affirm the decision of the trial Court taken as a whole. In fact, the decree of the High Court reversed in part the decision of the lower Court whilst maintaining it with regard to the remainder of the claim. The question therefore arises whether the decree of the High Court can be said to affirm the decision of the Court below.

14. On behalf of the proposed appellants, reliance was placed upon the decision of the Privy Council in AIR 1925 60 (Privy Council) to which reference has already been made. The facts of that case can be shortly stated as follows: In a suit claiming by adoption property of over Rs. 10,000 in value, one of the defendants, while denying the alleged adoption, claimed to be entitled to Rs. 3000 per annum as widows maintenance. The first Court decided in favour of the plaintiff upon the question of adoption, but decreed to the widow Rs. 800 per annum as maintenance charged upon the estate. The appellate Court increased the maintenance to Rs. 1200 per annum, but in all other respects affirmed the decree of the first Court. An application by the defendants to the appellate Court for leave to appeal to the Privy Council was rejected.

15. It was held by their Lordships upon an application for special leave that under Sections 109 and 110, Civil P.C., 1908, the defendants had a right of appeal to the Privy Council, and that special leave should be granted, limited, however, to the question of the maintenance allowance. Sir George Lowndes, K.C., who appeared for the appellants contended that the value of the subject-matter of the suit exceeded Rs. 10,000, as also did the subject-matter of the proposed appeal; and even if the maintenance alone was regarded as in dispute, its value, having regard to the widows prospects of life, exceeded RS. 10,000. He further urged that as the appellate Court did not affirm the decree of the first Court but varied it, it was not material u/s 110 whether any substantial question of law was involved or not. He, however, stated that having regard to the concurrent findings of the two Courts, the petitioners desired only to appeal with regard to the amount of the maintenance allowance. The opinion of the board, which is a very short one, was delivered by Lord Dunedhi and is in these terms:

In the opinion of their Lordships the contention of the petitioners counsel as to the affect of Section 110 of the Code, is correct. They had therefore a right of appeal. Special leave to appeal should be granted, but should be limited to the question of maintenance. The petitioners chance of success is not material to their application.

16. It has been contended on behalf of the appellants that Lord Dunedin agreed with counsels argument that all that mattered was whether there had been a variation and that it was immaterial whether both the Courts had agreed that the plaintiffs were entitled by reason of adoption to the property in suit. In short, it is said that by reason of the variation of the amount of maintenance granted to the proposed appellants the latter were entitled as of right to appeal against the whole decree and not only against the decree in so far as it related to maintenance. The proposed respondent, on the other hand, contends that the effect of this decision is that the proposed appellants were given leave to appeal only on the question of maintenance because the value of that relief alone amounted to over Rs. 10,000. It is true that leave to appeal was limited to the question of maintenance, but it is to be observed that counsel stated that his clients desired leave to appeal only upon that issue. Lord Dunedin does not in terms confine his observations to this question of maintenance. He expressed the view that the petitioners contention as to the effect of Section 110 of the Code was correct and that as the value of the suit and the subject, matter of the proposed appeal exceeded Rs. 10,000 the petitioners had an appeal as of right by reason of the fact that the appellate Court did not affirm the decree of the first Court.

17. The proposed appellants also relied upon three cases of this Court, the first of them being Ali Zamin v. Mohammad Akbar Ali Khan AIR 1928 Pat. 609 . In that case X, one of the heirs of B, the settlor, brought a suit to set aside Bs wakf against C, the mutwalli, and D, the widow of the settlor. The trial Court decreed the entire claim, awarding mesne profits, but on appeal the High Court varied the decree of the trial Court in respect of one of the properties in suit which was held to belong to D and by varying the decree for mesne profits against C into a direction that c would render accounts to the plaintiff for the period of his management. It also differed from the trial Court in the matter of certain findings, and C applied for leave to appeal to His Majesty in Council. It was held by a Bench (Das and Wort JJ.) that the decree of the High Court was not one of affirmance and the valuation of the subject-matter in dispute feeing over Rs. 10,000 leave could not be refused.

18. Further, it was held that the fact that the appeal to the Privy Council was in respect of that portion of the High Courts decree which affirmed that of the trial Court was immaterial u/s 110, Civil P.C., and reliance was placed on AIR 1925 60 (Privy Council) . It is to be observed that in the present case the appeal to the Privy Council is solely in respect of that portion of the High Courts decree which affirmed that of the trial Court and that being so, the case in Ali Zamin v. Mohammad Akbar Ali Khan AIR 1928 Pat. 609 is a direct authority in favour of the present contention of the proposed appellants.

19. This case was followed in another Bench decision of this Court, Jamuna Prasad Singh v. Jagarnath Parsad Singh AIR 1929 Pat. 561. In this case the plaintiffs obtained a mortgage decree in the Court of the subordinate Judge, but their claim to interest pendente lite was disallowed. The defendants appealed to the High Court while the plaintiffs preferred a cross-appeal in respect to interest pendente lite. The defendants appeal was dismissed while the plaintiffs cross-appeal was allowed, the decree of the High Court being in the following terms:

The decree of the Court below be modified to this extent that interest at the bond rate shall run on the principal up to the expiry of the period of grace.

20. The defendants applied for leave to appeal to His Majesty in Council the value of the subject-matter of the suit and the appeal being above Rs. 10,000. It was held that the decree of the High Court was not one affirming the decision of the Court immediately below" within the meaning of Section 110, Civil P.C., and that therefore the applicants were, as of right, entitled to appeal to His Majesty in Council. It was further held that the appeal could not be limited to the question of interest only, upon which point there was variation in the decree, but that the applicants were entitled to appeal from the entire decree. In this case the Bench (Jwala Prasad and Rowland, JJ.) expressly approved of and followed the case in Ali Zamin v. Mohammad Akbar Ali Khan AIR 1928 Pat. 609 to which I have already made reference.

21. A similar view was taken by Courtney-Terrell C.J., and Kulwant Sahay J., in Homeswar Singh v. Kameshwar Singh Bahadur AIR 1933 Pat. 262 . In that case the lower Court had granted the plaintiffs a mortgage decree, but when the case came to this Court the Court modified the decree as to a part of the claim amounting to roughly Rs. 90,000 and as to the amount of Rs. 90,000 this Court held that the plaintiffs were entitled not to a mortgage decree but to a money decree. The defendants applied for leave to appeal and contended that the case came within Section 110, Civil P.C., and it was urged that there was no right of appeal by reason of the fact that the only modification made by this Court was wholly in favour of the defendant and that his liability for the remaining portion of the claim had been upheld by both the Courts. Leave to appeal was granted. Dealing with this contention, Courtney-Terrell C.J. observed:

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.

22. A similar view has been taken by a Bench of the Lahore High Court in Hakim Rai v. L. Ganga Ram AIR 1938 Lah. 836 in which it was held that where in a plaintiffs appeal, the High Court Varied the trial Courts decree by a sum which was far in excess of Rs. 10,000 and though the variation was all in favour of the plaintiff and he could not have any appealable grievance against such variation, the decree of the High Court could not be said to be one of affirmance. Hence the plaintiff was entitled to appeal to His Majesty in Council as of right and it was not necessary for him to show that his appeal raised any substantial question of law. Against this body of opinion in favour of the contention of the proposed appellants a large number of eases have been cited in which it has been held that a proposed appellant cannot appeal as of right when both the trial Court and the appellate Court have affirmed such part of the decision as the proposed appellant wishes to challenge before His Majesty in Council.

23. In Narendra Lal Das Chaudhury Vs. Gopendra Lal Das Chaudhury and Others, the High Court of Calcutta refused leave to appeal in a case such as the one now before this Court. In that case the original decree gave the applicant a certain share in the property in suit but the appellate decree, while it confirmed the original decree in every other respect, modified it in respect of the share giving him the whole share he claimed so that on that point he had no further grievance. The question was whether the appellate decree was nevertheless one varying the original decree and the applicant was entitled to leave to appeal without proving that a substantial question of law was involved. Rankin C.J. and Ghose J. hold that a decree, which merely dismisses the appeal or confirms the decree of the lower Court, is not the only decree of affirmance for the purposes of an appeal to the Privy Council. The doctrine that has uniformly been followed is this that if on an examination of the subject-matter that is to be in debate before the Privy Council, it be found that on that point the two Courts have been in agreement, the decree of the appellate Court is to be treated as a decree of affirmance within the meaning of Section 110, Civil P.C., and for leave to appeal to England, the applicant will have to prove a substantial question of law. They further held that when the appellate Court modifies the original decree on a single point and that completely in the applicants favour so that he has no further grievance in that matter, he cannot, because of this modification, have a right to an appeal on other points on which the Courts have concurred, without showing a substantial question of law.

24. At p. 675 Rankin C.J. referring to AIR 1925 60 (Privy Council) observed:

The question is whether on the strength of the only ease before the Privy Council which we have for our guidance, the views hitherto adopted in this and other High Courts require to be further considered. The question is whether the judgment of their Lordships means that in every case where the decree of the High Court is not a mere decree dismissing the appeal or a mere decree affirming the order of the Court below in the case, the necessity for showing a substantial question of law is done away with. It appears to me that the case in AIR 1925 60 (Privy Council) is not in itself a sufficient authority to-justify this Court in abandoning the principle which it has with other High Courts acted upon, that is to say, I do not think that it shows that it is an erroneous view that we have to look to the substance and see what is the subject-matter of the appeal to His Majesty in Council. I have, I confess, some doubt as to whether in the end even that principle would be found to be in accordance with the construction to be put upon Section 110 but this Court and other High Courts have for many years acted upon that principle and I am not prepared to accept the case in AIR 1925 60 (Privy Council) as going further than this that where there is a dispute as to the amount of the decree or as to the amount damages the reasoning of Raja Sree Nath v. Secretary of State 8 C.W.N. 294 is not a correct application of that principle. We may take it, I think, that where the amount is a question in dispute, the fact that the Courts differ and that the higher Court differs in favour of the applicant does not mean that the decision is one of affirmance, but I am not in a case of this kind prepared to say that because on a totally different point, namely a point about the share, the applicant has succeeded and succeeded altogether so that he has no further grievance in that matter, he can without showing a substantial question of law have a right to litigate upon other points upon which both the Courts have been in agreement.

25. It is clear from this passage that; Rankin C. J. doubted whether the view of the Calcutta High Court and other Courts was in accordance with the true construction of Section 110, Civil P.C.; but having regard to the authorities of his own and other High. Courts he felt bound to hold that the case in AIR 1925 60 (Privy Council) decided nothing more than that the view previously held in Raja Sree Nath v. Secretary of State 8 C.W.N. 294 that a variation entirely in favour of the proposed appellant was not such a, variation as could render the decree of the High Court not a decree of affirmance. The view of Rankin C.J. was accepted and followed in a later Calcutta case, Bibhuti Bhusan Dutta Vs. Sreepati Dutta and Others, , in which it was held that when the appellate Court modifies the original decree upon. some point and that completely in the applicants favour, so that he has no further grievance in that matter, he cannot because of that modification have a right to an appeal to His Majesty in Council on other points, on which the Courts have concurred without showing a substantial question of law; such a decision is one of affirmance within the meaning of Section 110, Civil P.C.

26. A similar view has been taken by a Bench of the Madras High Court in Venkataswami Chettiar v. Sakkutti Pillai AIR 1936 Mad. 881. In that case a suit on a mortgage bond executed by defendants 1 and 4, one of the sons and the widow of a deceased Hindu, was brought against thorn and against defendants 2 and 3, defendant 2 being the other son of the deceased and the third the son of defendant 1. The trial Court passed a decree for the full amount claimed against defendants 1 and 4. Defendants 2 and 3 wore held liable only for a fraction of the debt. The plaintiff filed an appeal to the High Court and the result of it was that the lower Courts decree against defendants 1 and 4 and against defendant 2 was confirmed while, as regards defendant 3, it was practically reversed, his share in the joint property being hold liable almost for the full amount. On application filed by the plaintiff for leave to appeal to His Majesty in Council against the High Courts judgment in so far as his claim against defendant 2 was concerned, it was held that the decree against defendant 2 was one of affirmance and that, as the appeal raised no question of law which could be considered substantial within the meaning of Section 110, Civil P.C., the plaintiffs application was unsustainable. The learned Judges lay down that the proper test to find out whether in such a case the decree of the High Court is one of affirmance or reversal is to have regard not to the decision as a whole, but to the decision as it affects the subject-matter in dispute. They held that the right way of construing Section 110 was to read the words "decree or final order" in Clause (3) in conjunction with, and to treat them as relating to, "the subject-matter" mentioned in Clause (l). In short, the learned Judges held that the words "and where the decree or final order appealed from affirms the decision of the Court immediately below the Court passing such decree or final order" mean where the decree or final order of the High Court affirms such part of the decision of the Court below as the proposed appellants desire to challenge before His Majesty in Council. The learned Judges were clearly of the opinion that the phrase "the decision of the Court immediately below the Court passing such decree or final order" does not mean the whole of the decision but only such part of the decision as the proposed appellants desired to challenge.

27. A similar view has been expressed by Benches of the Lahore High Court in Babu v. Sri Ram AIR 1937 Lah. 712 and Mt. Shahzadi v. Mt. Rahmat Bi AIR 1937 Lah. 761, though a different view was taken by the same Court in a later case in Hakim Rai v. L. Ganga Ram AIR 1938 Lah. 836 to which I have made reference.

28. The Bombay High Court has also taken the same view in Kapurji Magniram v. Pannaji Debichand AIR 1929 Bom. 359 . In that case the Court of first instance decreed the plaintiffs claim in part. On appeal the High Court modified the decree by finding a sum of Rs. 2488 due by the defendants to the plaintiff. In both Courts an item of Rs. 18,000 referred to as a havala item was refused. Plaintiff moved the High Court for leave to appeal to the Privy Council as regards that item. There was no question of law involved. It was held that under the circumstances on true construction of Section 110 it was necessary that as the decree appealed from affirmed the decision of the Court below, on this item, the appeal must involve some substantial question of law before it could be admitted.

29. The last ease to be considered is a ease of this Court, Mahabir Prasad v. Brij Mohan Prasad AIR 1936 Pat. 553 , which was decided by Wort Ag. C.J. and Dhavle J. In that case the plaintiff claimed possession of certain properties and alleged that he had executed a sale deed in favour of the defendant, who had tampered with it and interpolated or changed certain pages and turned a conditional sale into an absolute sale. The trial Judge held that the defendant had not paid the whole consideration within the time stipulated and therefore the title had not passed and the plaintiff was entitled to recover possession. He also held that defendant had forfeited the Rs. 3000 which had been paid by him. On appeal by the defendant, the High Court affirmed the judgment of the trial Court on the main question but reversed it so far as the question of Rs. 3000 was concerned and it was held that Rs. 3000 was not forfeited. The defendant applied for leave to appeal to His Majesty in Council. It was held that the modification of the judgment was upon a single point and that completely in the applicants favour, so that he had no further grievance in that matter and he could not have a right of appeal on other points on which the Courts have concurred without showing a substantial question of law.

30. The learned Judges expressly followed the Calcutta decision, Narendra Lal Das Chaudhury Vs. Gopendra Lal Das Chaudhury and Others, , and explained the decision of their Lordships of the Privy Council in AIR 1925 60 (Privy Council) . It is unfortunate that no reference appears to have been made to the earlier ease of this Court, Ali Zamin v. Mohammad Akbar Ali Khan AIR 1928 Pat. 609 , where Wort Ag. C.J. had taken a different view. This case is in conflict with the other decisions of this Court to which I have made reference.

31. There can be no question that the point involved in this case is a difficult one and there is a conflict of decisions of this Court; but in my judgment the true test is whether the decision of the Court below as a whole has been affirmed by the High Court and not whether the decision on the point or points left in dispute have been affirmed by the High Court. The difficulty arises owing to the use of the phrase "the decision of the Court immediately below the Court passing such decree." Had the words "decree of the Court below" been used, the matter would have been clear. In my view, however, the expression "the decision of the Court immediately below the Court passing such decree" as used in Section 110 means the same as the expression "decree of the Court below." Once an appeal has been decided, the decree of the Court below is merged in that of the appellate Court and strictly there is no longer: in existence a decree of the trial Court. There is only a decision, and in my view the word "decision" means the decision of the trial Court taken as a whole. It must be remembered that an appeal is not preferred against any item or items in a decree. The appeal must be preferred against the whole decree, though for the purposes of valuation the subject-matter in dispute in appeal only is valued.

32. This was clearly laid down by their Lordships of the Privy Council in Jowad Hussain v. Gendan AIR 1926 P.C. 93. In that case counsel for the appellant had attempted to argue that there was no appeal to His Majesty in Council from the decree as a whole but only from certain portions of it. At p. 27 Viscount Dunedin, who delivered the opinion of the Board, observed:

The appellants counsel strenuously urged that the appeal was not against the decree, but only against the items in the decree. This is a complete misunderstanding. An appeal must he against a decree as pronounced. It may he rested on an argument directed to special items, but the appeal itself must ho against the decree, and the decree alone.

33. In the present case the proposed appellants have to appeal against the decree as a whole, and they will have a right to do so if that decree as a whole does not affirm the decision of the Court below. The appeal is not confined to such part of the decree as affirms a part of the decision of the Court below but is preferred against the decree as a whole. Clearly the decree as a whole does not affirm the decision of the Court below taken as a whole, and that being so, the appellants, in my view, are entitled to appeal as of right without showing that a substantial question of law is involved. In my view this case is concluded by the decision in AIR 1925 60 (Privy Council) , as explained by the earlier decisions of this Court to which I have made reference.

34. For the reasons which I have given, I would therefore grant leave to appeal to His Majesty in Council in this case and direct that the usual certificate should issue. The proposed appellants, in my view, are entitled to their costs of this application and I would assess the hearing fee at ten gold mohurs.

Fazl Ali J.

I agree.

Manohar Lall J.

I agree.