M L M RAMANATHAN CHETTI Vs. VKNSPSUBRAMANIAN CHETTI

JUDGEMENT

(1.) The petitioner was the second appellant in Appeal No. 99 of 1922, and he now applies for leave to appeal to His Majesty in Council against the decree of this Court. His appeal was dismissed and the Lower Court's decree confirmed, and it is not suggested that any substantial question of law is involved in the appeal. If, therefore, this appeal stood alone, the petitioner would have no right to appeal to the Privy Council under Secs.109 and no of the Civil P. C.. The petitioner however relies on the fact that a memorandum of objections was filed by the respondents in Appeal No. 99 of 1922 and allowed, and consequently, when the appellate decree was drawn up the Lower Court's decree was modified to the extent of about Rs. 300 in respect of some rent disallowed in the Lower Court.

(2.) It is contended for the petitioner that, as the only decree of this Court has modified the decree of the Lower Court, it is not an affirming decree and that therefore an appeal lies to the Privy Council. Respondents 1 and 2 contend that in accordance with the decision in Raja Sree Nath Roy Bahadur V/s. The Secretary of Stale for India in Council (1904) 8 C W N 294 which was followed in this Court in Mulraju Lakshmi Fenkayamma Rao Bahadur V/s. Venkatadri Appa Rao (1915) 30 I C 372, the decree of this Court substantially affirms the decree of the Lower Court and no appeal lies. In these cases it was decided that where a High Court has affirmed the decree of the Court of first instance, though it has made some modifications in the decree as regards another portion of the claim, it is essential for the grant of a certificate of leave to the Privy Council that the appeal must involve some substantial question of law. The petitioner relies on the recent decision of the Privy Council reported in Annapurna Bat V/s. Rup Rao (1924) I L K 51 C 969 (PC), where it was held that there was a right of appeal in a case where the High Court had modified the decree of the Lower Court by increasing in favour of the appellant the maintenance allowance decreed by the Lower Court, whereas in all other respects the decree was affirmed. In view of this decision it is possible that the two tormer decisions require reconsideration, but 1 do not think that any of these cases is directly applicable here. If no memorandum of objections had been filed, admittedly the plaintiff would have no right of appeal. Does the mere fact of an order on the memorandum of objections modifying the decree of the Lower Court give the plaintiff the right to re-open the whole of the case? it was held in Chiranji Lal V/s. Behari Lal (1918) 16 A L J 864 that when there had been two cross- appeals against the decree of the Court of first instance and one cross-appeal had been allowed and the other dismissed, there was no right of appeal against the decree dismissing the appeal, whereas an appeal lay against the decree allowing the appeal. The Court proceeded on the view that in cross-appeals the decree in each was a separate one. A memorandum of objections is in effect a cross-appeal, and although it is the practice in this Court to draft only one decree with reference to both the main appeal and the memorandum of objections, it is also the practice to do the same in respect of two or more cross-appeals from the same decree. In effect there are two orders of this Court, one dismissing the appeal and affirming the decree of the Lower Court and the other allowing the memorandum of objections or cross-appeal and modifying the decree of the Lower Court. So far, then, as the decree affirming the decree of the Lower Court is concerned, no appeal would lie to the Privy Council. Similarly, no appeal would lie to the Privy Council in respect of the order on the memorandum of objections because the subject-matter of that appeal was only Rs. 300. I would therefore hold that the mere fact that a cross-appeal has been allowed and the Lower Court's decree modified accordingly does not give the right of appeal to the appellant who otherwise would not have that right.

(3.) I therefore dismiss this petition with costs of respondents 1 and 2. Odgers, J.