PRANDHAN DAS Vs. PATAYET SAHEB PROMODE CHANDRA DEB

JUDGEMENT

(1.) This is an application for leave to appeal to His Majesty in Council from the decree of this Court in First Appeal No. 11 of 1940. The facts of the case are somewhat complicated, but for the purpose of dealing with the present petition they may be summarised as follows: On the death of Raja Lakshmi Narayan, who was the proprietor of Balarampur estate, four persons claimed to succeed to the estate, these being, (1) Rani Labanyabati mother of Lakshmi Narayan who will hereinafter be referred to as the Rani, (2) Gajadhar, (3) Raghunath and (4) Radha Mohan. The petitioner before us supplied funds to Raghunath and at a later stage to Gajadhar for the purpose of carrying on the litigation relating to the right of the various claimants to succeed to the estate. Ultimately a compromise was arrived at between the Rani and Gajadhar, one of the terms of which was that a sum of Rs. 50,000 shall be payable to the petitioner and this sum shall be a charge on the Quilla Balarampur property The petitioner, though he was not directly a party to the compromise, tried to enforce it by means of a suit against the defendants who included (1) the Rani (defendant (1), (2) a person to whom the Rani mortgaged the estate after the compromise (defendants) and (3) another person who was adopted as a son by the Rani after the compromise (defendant 8).

(2.) The trial Court held that the petitioner being not a party to the contract could not enforce it and upon this view dismissed the suit. The petitioner then appealed to this Court and, while the appeal was still pending, a compromise was arrived at between the petitioner and the Rani. The Rani admitted the plaintiff's claim for Rs. 50,000 and agreed that this sum shall be a charge on the Balarampur estate. This compromise was recorded by the Court and a decree was passed in accordance with the compromise against the Rani. The petitioner contends that he is entitled to appeal from this decree as a matter of right because by reason of the compromise having been recorded the decree of this Court is not one of affirmance, and the value of the subject-matter of the appeal as well as of the suit is more than Rs. 10,000. On the other hand, it is contended on behalf of the opposite party that the decree of the Court below has been, substantially affirmed and the petitioner cannot take advantage of that part of the decree which is based upon the compromise and against which he is not appealing. In Uma Churn v. Kanai Lal A.I.R. 1921 Cal. 81 it was held that where the decree of the High Court is one of affirmation except as regards a variation made in the lower Court's decree with the consent of persons trying to appeal to the Privy Council, those persons must show that some substantial question of law is involved.

(3.) A similar view was taken in Karunalaya Valangupalli V/s. Rev. Father Pignot A.I.R. 1943 Mad. 67 and Brahma Nand V/s. Shree Sanatan Dharma Sabha A.I.R. 1944 Lah. 329. In the last mentioned case Din Mohammad J. summed up his view as to the result of the variation of the decree of the first Court by consent of parties in these words: Here, as already explained, the respondents had of their own accord withdrawn their relief in respect of accounts and consequently any variation that followed in the decree of this Court was not the result of an adjudication by this Court but of the parties own action. It was as if that part of the case had been entirely removed from the adjudication of this Court and consequently it ceased to have any concern with it whatever. The applicant urges that what is to be looked at is only the final result and not the means by which it has been achieved. I, however, do not agree. So far as this Court had occasion to deal with the matter in controversy before it, the decree of the Court below had been affirmed and any variation that was introduced in it was merely because the parties had themselves so willed. The decree of this Court was therefore to all intents and purposes a decree of affirmance within the meaning of Section 110, Civil P.C.,