ORDER
William Watkins Phillips, J.
1. The petitioner was the 2nd appellant in A.S. 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 Sections 109 and 110 of the C.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 Nos. 1 and 2 contend that hi accordance with the decision in Raja Sree Nath Roy Bahadur v. Secretary of State for India 8 C.W.N. 294, which was followed in this Court in Mulraju Lakshmi Venkayamma Rao v. Venkatadri Appa Rao 30 Ind. Cas. 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 as Annapurnabai v. Ruprao 86 Ind. Cas. 504 : 51 C. 969 : A.I.R. 1925 P.C. 60 : 51 I.A. 319 (P.C.), 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, where as in all other respects the decree was affirmed. In view of this decision it is possible that the two former decisions require re consideration, but 1 do not think that any of these cases is directly applicable here. If no memorandum of objections hid 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 tore-open the whole of the case? It was held in Chiranji Lal v. Behari Lal 48 Ind. Cas. 124 : 16 A.L.J. 804 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 Nos. 1 and 2.
Odgers, J.
4. The question is whether where an appeal is dismissed, i.e., the decree of the lower Court is confirmed, but on appeal a memo of objections is allowed the decree or final order affirms the decision of the Court immediately below the Court passing such decree or final order. The question inappeal was a pure question of fact and the only ground on which the conditions of Section 110, C.P.C. can be fulfilled is that the decree on appeal is not one of affirmance.
5. There is no doubt that cross-objections are in the nature of an appeal. They were formerly held to depend on the appeal, i.e., they could not be heard unless the appeal itself was heard; this has been altered by Order XLI, Rule 22(4) and the hearing of the memo, of objections does not depend on the hearing of the appeal but may be heard as a substantive cross-appeal. If this is so, it seems clear that the two things, dismissal of the appeal and allowance of the memo, of objections are two distinct things and could appropriately be the subject-matter of separate decrees. There is no question hence of appealing against the memo, of objections. In Vikrama Deo Garu v. Maharaja of Jeypore 31 Ind. Cas. 272 : (1916) 1 M.W.N. 122 : 18 M.L.T. 387 my learned brother was of opinion that where a claim for Rs. 15,000 was entirely disallowed by the first Court and allowed only to the extent of Rs. 5,000 by the Appellate Court, the latter could not be said to be a decree of affirmance and in any case the appeal was Rs. 10,000 in value. In Raja Sree Nath Roy Bahadur v. Secretary of State for India in Council C.W.N. 294 the Appellate Court allowed the appellant an additional sum of Rs. 7,000 to that allowed by the lower Court. The appellant sought to appeal to the Privy Council on the ground that the Appellate Court had not confirmed the decree of the lower Court. It was held in substance that it did and that the appeal was dismissed except as to the additional Bum given. In Bhagwan Singh v. Allahabad Bank Ltd. 64 Ind. Cas. 3 : 13 A. 220 : 2 U.P.L.R. (A) 364 : A.L.J. 3 the Appellate Court not only allowed a deduction of Rs. 6,000 on account of a mistake but saddled the applicant with a liability for interest in excess of what the lower Court had awarded. The decree of the lower Court was in fact modified to appellant’s prejudice by about Rs. 8,000. It refused to follow Raja Sree Nath Roy Bahadur v. Secretary of State for India in Council C.W.N. 294, as the decree of the High Court modified that of the lower Court. In Annapurna Rai v. Rup Rao 86 Ind. Cas. 504 : 51 C. 969 : A.I.R. 1925 P.C. 60 : 51 I.A. 319 (P.C.) special leave to appeal was granted from a decree of the High Court which modified the decree of the lower Court by increasing the rate of maintenance from Rs. 800 to Rs. 1,000 per annum.
6. I think the present case is clearly distinguishable. The appellate judgment confirmed that of the lower Court though it in the same decree allowed the cross-appeal by the appellant.
7. It appears to me that this case is similar to that in Chiranji Lal v. Behari Lal 48 Ind. Cas. 124 : 16 A.L.J. 804 which was a case of cross appeals; no certificate being granted in respect of the appeal from the portion of the judgment which, affirmed that of the lower Court. In Mulraji Lakshmi Venkayanna Rao Bahadur v. Venkatadri Appa Rao 30 Ind. Cas. 372, a Bench of this Court saw no reason to differ from the decision in Raja Sree Nath Roy Bahadur v. Secretary of State for India in Council 8 C.W.N. 294. Whether that decision is correct or not seems to me to be unnecessary to decide in the present case which is really one of cross-appeals similar to Chiranji Lal v. Behari Lal 48 Ind. Cas. 124 : 16 A.L.J. 804. I think the decree is one of affirmance and that leave to appeal to the Privy Council must be refused.
