JUDGMENT
Dawson Miller, C.J.
1. In this case the defendant applies for a certificate that the case complies with the requirements of Section 110 of the Code of Civil Procedure and is a fit one for appeal to His Majesty in Council. The facts may be shortly stated. The plaintiff Babu Shiv Saran Lal was appointed in 1902 to act as Manager of the Damraon Raj by the late Maharani Beni Prasad Koeri, who under her deceased husband’s Will had a life-interest in the estate. In 1906 the Maharani executed an ekrarnama in favour of the plaintiff granting him a pension of Rs. 500 per month from the date when he should retire from the management of the estate. The Maharani died in December 1907. After Rome litigation the first defendant the Maharaja Kesho Prasad Singh succeeded in proving his title to the estate. In March 1908 the plaintiff ceased to be Manager of, the estate and was paid his pension until September 1911, when the first defendant obtained possession of the Raj. In August 1912 the plaintiff instituted the present suit claiming the pension from September 1911 to July 1912 and interest on unpaid arrears. He failed before the Subordinate Judge of Shahabad, but on appeal to this Court he obtained a decree against the first defendant for Rs. 5,445 together with interest at 6 per cent. per annum until realisation. By the terms of the decree it was ordered that the decree should be executed only against the property of the late Maharani in the hands of the first defendant and which had not been duly administered by him. The judgment was based upon the findings that although she could not bind the estate, the Maharani as tenant for life had power to dispose of her own acquisitions and that these did not form part of the estate at her death and that there was prima facie evidence to shew that the first defendant came into possession of property, both moveable and immoveable, which the late Maharani might have disposed of if she pleased. There is no finding either as to the exact value of such property, although there was evidence to shew that it was considerable, amounting to some lakhs of rupees, or as to whether it had been duly administered by the first defendant. It was but faintly argued that the amount or value of the subject-matter of the suit amounted to Rs. 10,000 within the meaning of the first paragraph of Section 110 of the Civil Procedure Code, but it was contended that the decree of this Court involves directly or indirectly a claim to or question respecting property of that amount or value within the meaning of the second paragraph of the section. It was urged in support of the second contention that the decision arrived at by the judgment from which the defendant seeks to appeal involves a claim to have the accrued and future instalments of pension paid out of the Maharani’s estate and as the instalments which are now due but still unsatisfied amount to considerably more than Rs. 10,000, the requirements of the second part of the section are fulfilled. In my opinion neither of these contentions can succeed. The first can be shortly dealt with. The plaint does not claim anything beyond the sum of Rs. 5,445 made up of pension and interest to July 1912 and further interest until realisation. No claim is made for a declaration that the plaintiff is entitled to furture pension or to a charge on the property for such pension, although it is true there is a general claim for any other relief to which the plaintiff may be entitled without specifying its nature. That interest payable until realisation cannot be added in ascertaining the amount of the subject-matter of the suit in the Court of first instance was definitely determined in the case of Moti Chand v. Ganga Prasad Singh 24 A. 174 : 6 C.W.N. 362 : 29 I.A. 40 : 4 Bom. L.R. 59 : 8 Sar. P.C.J. 247 where their Lordships of the Privy Council rejected this contention and refused leave to appeal. But two decisions of the High Court at Calcutta were referred to where a claim for future mesne profits was allowed to be taken into consideration in estimating the amount of the subject-matter of the suit in the Court of first instance although the addition of mesne profits at the date of the decree in such Court did not bring the total up to the appealable amount. [See Dalgleish v. Damodar Narain Chowdhury 33 C. 1286 and Basanta Kumar Roy v. Secretary of State 6 Ind. Cas. 792 : 14 C.W.N. 872. How far these decisions are consistent with the principle which guided their Lordships in Moti Chand v. Ganga Prasad Singh 24 A. 174 : 6 C.W.N. 362 : 29 I.A. 40 : 4 Bom. L.R. 59 : 8 Sar. P.C.J. 247 (ubi sup.) or how far their authority may have been shaken by the more recent decision of the Madras High Court in Subramania Aiyar v. Sellammal 31 Ind. Cas. 296 : 39 M. 843 : 2 L.W. 1057 : 18 M.L.T. 450 : (1915) M.W.N. 941 : 30 M.L.J. 317 it is not necessary to determine. It is sufficient to say that in the present case the subject-matter of the suit in the Court of first instance amounts to nothing more than the sum claimed and there is no claim for mesne profits or anything analogous thereto. It follows, therefore, that the case does not fulfil the requirements of the first paragraph of the section.
2. The second contention, viz., that the case fell within the second paragraph of the section led to some argument before as to the class of oases to which the second paragraph of Section 110 is meant to apply. The case of Subramania Aiyar v. Sellammal 31 Ind. Cas. 296 : 39 M. 843 : 2 L.W. 1057 : 18 M.L.T. 450 : (1915) M.W.N. 941 : 30 M.L.J. 317 (uri sup) was relied on by the respondent who opposed the application. In that case the subject-matter of the suit including mesne profits in the Court of first instance was under Rs. 10,000, but by the addition of mesne profits for the period between the institution of the suit and the date of the petition for leave to appeal to his Majesty in Council the value of the subject-matter in dispute exceeded that amount. It was there decided, in a judgment reviewing at length the earlier decisions, that the second paragraph of the section applied only to cases involving some claim or question to or respecting property other than that in respect to which the claim is brought and which may be taken into account therewith in making up the appealable value, or that it may possibly also apply to oases involving claims incapable of a money valuation such as claims to easements and the like, but apart from this, if nothing beyond what is in one of the judgments in that case described as the object-matter in dispute is involved, the first paragraph of Section 110 alone applies. This decision was at variance with the view expressed by Sir Francis Maclean at the end of his judgment in Dalgleish’s case 33 C. 1286, although this part of his judgment was not necessary for the determination of the case, he having already held that the first paragraph of the section had been complied with. Were it necessary for us to choose between these authorities. I should be inclined to give more weight to the reasoned decision of the Madras High Court than to the dictum of Sir F. Maclean in the earlier case, but a further point which, in my opinion, concludes the case against the petitioner was raised and argued before us.
3. It was contended by the respondent that the petitioner had failed to shew that there was any property of the value of Rs. 10,000 or upwards in respect to which any claim or question was involved, as the petitioner’s case was. and always had been that there was no property belonging to the late Maharani in his hands and not only administered against which alone under the form of the decree the respondent’s claim could be executed. In the petition praying for a certificate that the case fulfils the requirements of the section, the grounds of appeal are set out and under the headings (n) to (s) the petitioner disputes the contention that any property of the late Maharani came into his hands or that she ever had any separate property. It seems to me that whether any property such as that mentioned in the decree exists is a matter at present undecided and one which can only be finally determined in the execution proceedings now pending, in which proceedings the petitioner is vigorously contesting the existence of such property and has all along refused to pay the decretal amount, although his application to stay execution pending the appeal to His Majesty in Council has on a previous occasion been rejected by this Court. In these circumstances I think that even if the second alternative in Section 110 is applicable, the petitioner has failed to show that the decree involves a claim or question to or respecting property of the requisite amount of value. The petition will, therefore, be dismissed with costs. Hearing fee five gold mohurs.
Mullick, J.
4. I agree that leave should be refused, but as both sides have sought to draw an analogy from certain cases relating to mesne profits I think it is necessary to make some reference to them. The first case on which the defendant petitioner for leave relies is Dalgleish v. Damodar Narain Chowdhury 33 C. 1286. There the plaintiff sued for recovery of possession of land of the value of Rs. 5,400 and claimed mesne profits till possession was delivered. The suit was decreed in favour of the plaintiff and in the execution proceedings he put in a claim for mesne profits for over Rs. 30,000. The defendant appealed to the High Court, and the execution proceedings were stayed. The appeal was allowed and the plaintiff applied for leave to appeal to His Majesty in Council; It was contended that the case did not fall within the first part of Section 593 of the Civil Procedure Code of 1882, which corresponds to Section 110 of the present Civil Procedure Code, because although the claim in the appeal exceeded Rs. 10,000 the value of the subject-matter of the suit was below that sum. Maclean, C.J., and Holmwood, J., held that mesne profits could be taken into account in estimating the value of the subject matter of the suit. They also expressed the opinion that even if the first part of Section 596 was not applicable, still the decree involved directly or indirectly some claim or question to or respecting property of the value of Rs. 10,000 or upwards within the meaning of the second Clause of Section 596.
5. The defendant next draws our attention to Basanta Kumar Roy v. Secretary of State 6 Ind Cas. 792 : 14 C.W.N. 872. That was a suit for possession of land with mesne profits. The value of the land as stated in the plaint was Rs. 6,156. In the application for leave to appeal to the Privy Council mesne profits and interest down to the date of the High Court decree were estimated at Rs. 5,607. It was admitted that the value of the matter in dispute on appeal was over Rs. 10,000, but it was contended that the value of the subject-matter in the Court of first instance was less. Jenkins, C.J., in holding that mesne profits and interest thereon could be taken into account in estimating the value of the subject-matter of the suit made the following observations:
Seeing that under the Code of Civil Procedure of 1882, the Court could provide in the decree for the payment of mesne profits in respect of the property from the institution of the suit until the delivery of possession or until the expiration of three years from the date of the decree with interest, such mesne profits and interest can, I think, be legitimately regarded as part of the subject-matter of the suit.
6. The applicability of the second part of Section 596 of the Civil Procedure Code was not considered.
7. On the other hand, the plaintiff relies on Subramania Aiyar v. Sellammal 31 Ind. Cas. 296 : 39 M. 843 : 2 L.W. 1057 : 18 M.L.T. 450 : (1915) M.W.N. 941 : 30 M.L.J. 317. There the value of the land was under Rs. 10,000 but by the addition of mesne profits the value of the matter in dispute at the time of the application for leave to appeal to His Majesty in Council exceeded Rs. 10,000. The Court held that mesne profits could not be added for the purpose of calculating the value of the subject-matter of the suit. The Court also observed that the second part of Section 110 of the Civil Procedure Code did not apply and that the decree for mesne profits could not be said to involve directly or indirectly some claim or question to or respecting property of value exceeding Rs. 10,000.
8. There is, therefore, a clear conflict between the views of the High Courts of Calcutta and Madras, but in my opinion it is unnecessary for the disposal of the application now before us to decide which of these views is correct.
9. Here the first question is whether the value of the matter in dispute on appeal to His Majesty is Rs. 10,000. Admittedly it is not, even if interest up to the date of the High Court decree is taken into account. But it is suggested that in calculating the value of the matter in dispute on appeal as well as the value of the subject-matter of the suit we should include arrears of pension which may have become due since the trial Court’s decree with interest thereon. In my opinion this suggestion cannot be accepted. I think it is quite clear that the subject-matter of the suit was only the specific and ascertained sum of Rs. 5,445 due on account of arrears of pension and interest thereon. The suit did not in any way concern itself with any future arrears of pension. The plaintiff made no claim for them and it is not known whether he intends to bring future suits in respect of them. How then can anything which the plaintiff does not claim and which has not and could not have been given by the decree be the subject-matter of the suit or be in dispute on appeal? No analogy can be drawn from the practice of the Calcutta High Court in respect of mesne profits which the Civil Procedure Code compels the Court to grant if claimed in the plaint.
10. At the same time I prefer not to rest my decision on the view of their Lordships of the Madras Court and I am satisfied without any reference to the decision in Subramania Aiyar’s case 31 Ind. Cas. 296 : 39 M. 843 : 2 L.W. 1057 : 18 M.L.T. 450 : (1915) M.W.N. 941 : 30 M.L.J. 317 that the present application does not come within the first part of Section 110 of the Civil Procedure Code.
11. The next question is whether the decree involves a claim directly or indirectly to property of the value of Rs. 10,000. It is contended that the decree involves a claim to subsequent arrears of pension which have by now amounted to more than Rs. 10,000. The answer to this is that the decree does not involve either directly or indirectly a claim to anything more than the sum decreed and the interest thereon. According to the decided cases it might have been otherwise if the plaintiff had brought suits for these subsequent arrears, but it seems clear that while such suits are in gremio futuri the second part of Section 110, Civil Procedure Code, does not apply.
12. The next question is whether the decree directly or indirectly involves a question respecting property of the value of Rs. 10,0’00. It is contended that it does, because the arrears of pension which have become due subject to the decree are the property of the plaintiff just as much as the arrears already decreed. The reply to this is that such arrears do not become the plaintiff’s property till he has obtained a decree from Court or till the defendant has admitted liability for the same.
13. Finally it is contended that the decree involves indirectly the question whether property of the value exceeding Rs. 10,000 is liable to attachment in execution of the decree. The answer to this is that it has not been found by any Court whether the defendant has in his hands any property of which attachment can be made in execution of the decree. That matter was expressly left open in the appellate judgment of the High Court, and the defendant’s case before us is that he has no such property in his hands. Moreover, the question as to what properties can be attached in execution of the decree cannot, in my opinion, be said to have even an indirect connection with the decree itself. The decree-holder may attach property or may not; if he does attach property the value of such property may be over Rs. 10,000 or it may not.. It does not necessarily follow that any question as to title to property is directly or indirectly involved in the relief which the Court has here given to the decree-holder.
14. In this view of the case it is unnecessary to discuss the correctness of the opinion which has been expressed in Subramania Aiyar’s case 31 Ind. Cas. 296 : 39 M. 843 : 2 L.W. 1057 : 18 M.L.T. 450 : (1915) M.W.N. 941 : 30 M.L.J. 317 to the effect that the property referred to in the second part of Section 110 of the Civil Procedure Code must be property other than the subject-matter of the suit. Such a view might, I apprehend, lead to difficulties in drawing the line between property which is the subject matter of the suit and property which is not. In my opinion the Legislature has expressly enacted the Second Clause in wide terms, so that each case may be dealt with upon its own facts.
15. In the present case, giving the words of the second part of Section 110 of the Civil Procedure Code the most liberal construction, it does not seem to me possible to say that the decree involves a claim to or question respecting property of the value of Rs. 10,000.