NATHU LAL Vs. DURGA PRASAD

JUDGEMENT

(1.) On an application filed by the defendant under Article 133 of the Constitution of India for leave to appeal to the Supreme Court an order was made by a Division Bench of this Court, to which I was a party, on the 27th November 1950, by which it was held that the defendant had a right to so in appeal to the Supreme Court under Article 133 of the Constitution of India, provided he can show that the value of detriment, which he would suffer on account of the execution of the decree is Rs. 20,000/- or upwards, which would be the value of the entire property, as it now stands, including the additions made by the defendant after the filing of the suit. As the property had not been valued, a direction was issued to the District Judge, Jaipur City, to hold an enquiry in the matter and to submit his findings to this Court. In pursuance of that order, the District Judge, Jaipur city, held an enquiry and he has submitted the papers back to this Court along with his finding that the value of the entire property is more than Rs. 20,000/-. An objection petition has been filed on behalf of the plaintiff-decree-holder that the finding of the District Judge is erroneous and that in calculating the value of detriment to the defendant on account of the execution of the decree in question, the value of the property, which was the subject-matter of the suit, should not have been included.

(2.) As regards the point, whether under para 2 of Section 110 C. P. C. the value of the subject-matter of the suit should be taken into account in calculating the value of the loss or detriment which the defendant would suffer on account of the execution of this decree, there appears a finding of this Court in the order dated the 27th November 1950, but a perusal of that order shows that this point was not specifically agitated by the parties before the Court at that time and consequently this point has not been discussed in that order. The parties were therefore allowed to argue this point again.

(3.) The provisions of Article 133 of the Con stitution of India are exactly the same as those of sections 109 and 110 of the Civil Procedure Code.