HEM NILONI JUDAH Vs. ISOLYNE SAROJ BASINI BOSE

JUDGEMENT

(1.) This is an application for the grant of a certificate under Article 133 of the Constitution praying that a certificate be issued in respect of a judgment of this Court dated 17-1-1957. After the presentation of this application, the applicant presented another application praying that his request may be considered not merely under Article 133 of the Constitution but also under Article 135 of the Constitution. It appears that the original suit, out of which the appeal came up before this Court, was instituted in the year 1946. The suit was valued at Rs. 15,000/-. The subject-matter of the property in dispute was therefore clearly Rs. 15,000/-. The plaintiff opposite party had claimed the ownership of the whole of a house which she had valued at this amount of Rs. 15,000/-. The decree which was passed by this Court on 17-1-1957, declared the plaintiff opposite party to be owner of only a half share in the house, and it is against this part of the decree that the present applicant wants to go up in appeal to the Supreme Court. The value of this half share of the property at the time of the institution of the suit, was only Rs. 7,500/-, but it has been contended by the learned Counsel for the applicant that on the 17-1-1957, when this Court passed the decree against which the appeal is sought to be filed before the Supreme Court, the value of this half share of the plaintiff exceeded Rs. 10,000/-. It is, therefore, contended on behalf of the applicant that the applicant is entitled to obtain a certificate as of right. On behalf of the opposite party it has, however, been contended that there is no such right as the value of the share decreed in favour of the plaintiff opposite party is only Rs. 7,500/-.

(2.) We may first take notice of the fact that this suit having been instituted in 1946, before the Constitution came into force, the right of appeal to the Privy Council was governed by Section 110 of the Code of Civil Procedure under which, if the decree of the High Court was a decree reversing the decision of the Court of first instance the party concerned had a right of appeal to the Privy Council if the subject matter in dispute in the Court of first instance be, and the subject matter in dispute before the Privy Council be, not less than Rs. 10,000/-. That jurisdiction of the Privy Council now rests in the Supreme Court. The right of appeal accrues on the date of the institution and consequently for the purpose of deciding whether a certificate can or cannot be claimed in this case, the relevant value to be taken into account is Rs. 10,000/-, and not Rupees 20,000/- as now laid down in Article 133 of the Constitution.

(3.) Very clearly, the first requirement that the value of the subject matter of the property in dispute in the Court of first instance should not be less than Rs. 10,000/- is fully satisfied in the present case. The property was valued by the plaintiff opposite party herself at Rs. 15,000/- and the whole of the property was in dispute in that Court.