P L D 1954 Lahore 490 (PLP)

With respect to the last portion of these observations; I may explain that since the enactment of rule 33 of Order 41, C. P. C., it is not correct to say that "the relief given by it (appellate Court) will be limited to a portion of the decree appealed against", nor can it be said that "it is not the function of a Court of Appeal as distinguished from a Court of Revision to give relief to any party who 'has not applied to it in the form and within the time prescribed for appeal". Rule 33 did not exist when Bhashyam Ayyangar, J. wrote the judgment but it is arguable that the provision in this rule really expresses the inherent power of a ' Court of Appeal, a proposition which finds support in Lachmeshwar v.. Keshwar Lal (AIR 1941 FC 5) to which I will presently refer. The observations of Bhashyam Ayyangar, J. were approved by Sadasive Aiyar `and Napier JJ. in henugopal Mudali v. Venkatasubiah Chetty (AIR 1916 Mad. 883.). That was a case relating to Article 11 of the Limitation Act according to which in, a suit to impeach an order, time runs from the date of the order. The learned Judges quoted from the observations of Bhashyam Ayyangar, J. and held that after there has been an appeal, though only with respect to a part of the decree, the decree of the appellate Court "is the only subsisting decree in the suit". The learned judges also relied on Brij Ndrain v. Tejbal Bikram Bahadur (I L R 32 All. 295 (P C)), a case relating to amendment of decree wherein their Lordships of the Privy Council had held that after they had been appeal the trial Court had no juris diction to amend the decree. To this Privy Council case I will revert. Here I am drawing attention to it in order to demonstrate that the question of the effect of appeal on a decree is one of principle and the propositions laid down in one connection can very well be relied upon in another. In Lachmeshwar v. Keshwar Lal (supra), the question with which their Lordships were concerned was one of the powers of an appellate Court. An act of the legislature had come into existence after the trial Court's decree. It was contended before their Lordships that the appellate Court was only concerned with, the question whether the decree of the trial Court was correct on the date on which it was passed. Their Lordships rejected this contention holding that an appeal was a rehearing of the suit. Varadachariar, J. thus referred to the observations of Bhashyam Ayyangar, J. (p. 13 col. 2) "The very words of Order 58, rule 5, of the Rules of the Supreme Court, on which Bowen L. J. laid stress in (1882). 9 Q B D 672 at p. 678 and Lord Gorell in (1912) A C 788 at. p. 801, namely, that the; Court of Appeal has power to make such further or other orders as the case may require, have been reproduced in Order 41, rule 33, C. P. C. of 1908 ; and even before the enactment of that Code, the position was explained by Bhashyam Ayyangar, J. in I L R 26 Mad. 91 at pp. 95, 96 in language which makes it clear that the hearing of an appeal is under the processual law of this country in the nature of a re‑hearing." It may be noted 'that the C. P. C. does not apply to the Federal Court and rule 33 could be relied upon only if it embodied a general principle. Abdul Alim v. Abdul Hafez (A I 1927 Cal. 89.), a Division Bench judgment, is another case which approves of the observations in Kristnama Chariar v. Mangammal and clearly supports the proposition I am putting forward. Cuming, J. said (p. 90 Col. 1):‑ "When a party appeals against a decree or a part of a decree he files a copy of the whole decree. No doubt possibly he does not object to the decree in toto and may only desire to have it varied in some portions. Still even if he appeals against any part of the decree the decree is appealed against. He may only be asking that the decree should be altered in some particulars and not all. It seems to me, therefore, that the appellate Court deals with the decree as a whole. It has always been held that after appeal the only decree that can be executed is the, decree of theft appellate Court whether it reverses, modifies or confirms the decree of the lower Court. See the case of Shohrat Singh v. Bridgman ((1882) 4 All. 376=(1882) A W N 68 (F B).). That decree is, I think, the only decree in the suit. To hold otherwise would give rise to a possible contingency of there being three or possibly four decrees in the same suit capable of execution viz., that of the "Court of first instance as regards, one part of the claim, that of the first appellate Court with regard to another part of the claim, that of the High Court with regard to another part, and possibly that of the Privy Council with regard to a further part. It seems to me that when a decree is appealed against even though the appellant appeals against only a portion of the decree, the whole decree of the first Court is superseded by or becomes merged in' the decree of the appellate Court anal there is no part of the first Court's decree that remains to be executed. No part of the decree of the first Court can be held to be in separate existence after an appeal in the suit has been decided. The conclusion to which. I come is that, there is only one decree to be executed and hat is the decree of the appellate Court." Page J., the other member of the Bench quoted the rele vant portion of the judgment of Bhashyam Ayyangar J. in Kristnama Chariar v. Mangammal and agreed with it. Badaldas v. Gurdinomal (A I R 1939 Sind 329,) is a case relating to res judicata but it quotes a part of the observations of Bhashyam Ayyangar, J. with approval in support of the proposition that in appeal it is the suit that is heard and that the final decree in the suit is the decree of the Court of Appeal. Gajadhar Singh v. Kishan Jiwan Lal (ILR 39 All. 641.) is a Full Bench case of the Allahabad High Court. The question that arose in that case was whether, if an appeal had been filed against a preliminary decree, the time fixed by the trial Court for the payment of money ran from the decree of the trial Court or whether that decree was to be regarded as superseded by the appellate decree. It was held that limitation for an applica tion for a decree absolute ran not from the expiry of the term fixed for payment by the original decree, but from the date of the decree of the final Court of Appeal. The learned judges said, "if an appeal is preferred and the case is decided by the appellate Court, the decree of the appellate. Court takes the place of the decrees of the subordinate Courts where it. affirms 'she decrees of those Courts and the decrees of the subordinate Courts are merged in the decree of the final Court of Appeal". Shohrat Singh v. Bridgman (ILR 4 All. 376) is another Full Bench case of the Allahabad High Court. The question for decision in that case was whether after an appeal has been preferred it is the decree of the first Court that is to be executed on the decree of the appellate Court. With respect to that part of the decree, which was sought to be executed, there had been no appeal. The learned judges said: In our opinion the appellate decree is the final decree and the only decree capable of being executed after it has been passed, whether the same reverses, modifies, or confirms the decree of the Court from which the appeal was made". In Shivlal Kalidas v. Jumaklal Nathiji Desai (ILR 18 Bom, 542) there was an application for amendment of a decree as to costs. A decree had been obtained by the plaintiff from the first appel late Court. While the judgment of that Court directed that the parties should bear each other's costs in certain, propor tions in both the Courts, the decree, by a mistake, directed parties to bear their own costs in both Courts. The decree had been affirmed on second appeal by the High Court and before the High Court no point as to costs had been taken. It was held that the High Court was the only Court which could amend the decree. The learned judges observed: "This Court however has always held that the only decree which exists for the purpose of execution after the High Court has confirmed the decree of the Court below is the decree of this Court into which that of the lower Court becomes incorporated and if that be so; it is difficult to under stand how, consistently with that ruling, the lower Court can have the power to amend the decree even under sec tion 206." In Sri Gobind Singh v. Gangadhari Pershad Singh (6 C L J 542,) some of the defendants had appealed against a decree. Subsequently a defendant who had not filed an appeal applied to the trial Court for amendment of the decree. The propo sition as stated above was laid down and it was held that there existed only the decree of the appellate Court and the jurisdiction to amend was only that of the appellate Court. The view that after there has been an appeal it is only the appellate Court that can amend the decree has been approved by the Privy Council in Brij Narain v. Tejbal Bikram Bahadur,, In that case the High Court of Allahabad had held that after there had been an appeal the trial Court had no jurisdic tion to amend the decree and the decision was upheld by their Lordships. Before the above mentioned Privy Council case the Allah abad High Court had already held in a Full Bench case that is, Muhammad Sulaiman Khan v. Muhammad Yar Khan (I L R 11 All. 267) that after an appeal is preferred the jurisdiction to amend is only in the appellate Court. In another Full Bench case that is Shohrat Singh v. Bridgman it had been held that after there is an appeal the only decree capable of execution is that of the appellate Court. The question referred to 'the Full Bench was (p. 378) :‑‑ "When a suit is heard in first or second appeal, and a decree passed, is the decree of the Court of last instance, the sole decree which is capable of execution, or may the specifications contained in the decrees of the lower Court or Courts be referred to and enforced by the Court to which the application for execution has been made" The answer was (p. 379) :‑ "Objections to the decree of the lower Court which has become that of the last appellate Court could be attended to by the latter Court ' alone. We should therefore say that the decree of the Court of last instance is the only decree susceptible of execution, and that the specifications of the decrees of the lower Court or Courts as such may not be referred to and applied by the Court executing the decree". The proposition accepted in this and numerous other cases is that after an appeal the decree of the trial Court becomes merged in the decree of the Court of Appeal. In Madras too, the question as to whether a trial Court could amend a decree after an appeal had been filed was answered in the negative by a Full Bench vide Pichuvayyangar v Seshayyangar (I L R 18 Mad. 214) This case approved of Manavikraman v Unniappan (ILR 15 Mad. 170.) wherein the learned judges had said :‑ "We have no doubt that when an appeal has been heard, the decree of the appellate Court becomes the final decree = in the suit, and the only one capable of execution." In Brajasunder Deb v. Rajendra Narayan (AIR 1941 Pat. 269) while dealing with an application for leave to appeal, a special Bench of the Patna High Court said :‑ "Once an appeal has been decided, the decree of the Court below is merged in that of the appellate Court and strictly there is no longer in existence a decree of the trial Court." Further on they said :‑ "It must be remembered that an appeal is not preferred against any item or items in a decree. The appeal must be preferred against the whole decree though for the purposes of valuation the subject‑matter in dispute in appeal only is valued. This was clearly laid down by their Lordships of the Privy Council in I L R 6 Pat.

24. In that case counsel for the appellant had attempted to argue that there was no appeal to His Majesty in Council from the decree as a whole but only from certain portions of it. At p. 27 Vis count Dunedin, who delivered the opinion of the Board, observed: "The appellant's counsel strenuously urged that the appeal was not against the decree, but only against the items in the decree. This is a complete misunderstanding. An appeal must be against a decree as pronounced. It may be rested on an argument directed to special items, but the appeal itself must be against the decree, and the decree alone." This view of the effect of an appeal receives support from the provisions of the Civil Procedure Code. When an appeal directed only against a part of the decree has been filed, the Court of Appeal can, in view of Order 41 rule 33 deal with' the whole decree. That a jurisdiction to interfere with the' whole decree exists even when the claim in appeal relates to a part cannot be doubted though it may be objected that the provision is exceptional and only grants a power which may or may not be exercised. This objection does not, how ever, render the argument without force. In the first place, while the powers which are recognized by rule 33 would be exercised only in exceptional cases, the provision itself is not exceptional. It explains they function of a Court of Appeal. In the second place, though the powers may be exercised in ex ceptional cases, it would be the duty of a Court to see whether it should or should not exercise such powers. It may refuse to interfere in a 'particular case even on the ground that the party has not thought fit to file an appeal. But the duty to consider the matter as well as the discretion to interfere in spite of the fact that a cross‑appeal has not been filed exists. When a Court possesses a discretion, it is its duty to consider whether or Clot to exercise the discretion and if a District judge while hearing an appeal failed to consider whether he should exercise his powers under Order 41, rule 33, there would be legitimate ground for interference with his decree under section 115 C. P. C. If the Court does apply its mind and determines whether the decree should or should not be interfered with under rule 33, it would be confirming the decree. I am putting this forward only as one of the arguments in favour of the view I am taking. Even apart from Order 41, rule 33 and having regard to general principles accepted in numerous judgments the effect of an appeal always into merge the, trial Court's decree in the appellate decree. That Order 41, rule 33 also lends support to this argument has been recognized in more than one case. . I may refer to Somar Singh v. Mst. Premdei Kuer (A I R 1926 Pat. 40) where the learned judges say :‑ "Rule 33 of Order 41, of the new Code, as observed above, enables the appellate Court to deal with the entire decree although the appeal may be as to a part of the decree, and also to give directions in favour of parties who have actually not filed any appeal or objection. In this "way under the present Code of Civil Procedure in an appeal from a part of the decree by some of the parties the entire decree becomes the subject‑matter of the appeal." Another important argument in favour of the view that the appeal has to deal with the whole suit is rule 35 of Order 41, sub‑rule (3) of which runs:‑ "(3) The decree shall also state the amount of costs in curred in the appeal, and by whom, or out of what property, and in what proportions such costs and. the costs in the suit are to be paid." It will be observed that the appellate Court is bound to pass an order as to the costs of the suit also. Unless the appellate Court was dealing with the whole suit this provision would be out of place. I may also refer to rule 32 of Order 41 which deals with the appellate judgment. According to this rule, the appellate decree reverses, varies or affirms the Lower Court's decree. It does not merely accept or reject the claim in appeal. That the legislature regards cross‑appeals as one proceeding for the purpose of appeal to the Federal Court is supported by Order 45, rule 4 which relates to consolidation of appeals to Federal Court. Under this rule suits dealt with by the same judgment can be consolidated with respect to their valuation so as to give the party the benefit of the cumulative value of the two suits. There is no similar provision with respect to appeals arising out of the same suit. It is unimaginable that the legislature would deliberately exclude cross‑appeals in the same suit from the benefit of consolidation. The only rea sonable explanation of this provision is that the legislature regarded appeals, arising out of the suit as one proceeding. In fact, the legislature contemplates only one judgment and one decree in cross‑appeals. I would respectfully agree with what the learned judges said in Nannu Prasad v. Nazim Husain (A I R 1928 All. 274) Lindsay J. said :‑ "The law contemplates that there should be only one .decree in one suit, except in certain cases in which the Civil procedure Code lays down that there may or must be two decrees: one preliminary and one final. The function of the appellate Court is to determine what decree the Court below ought to have made, and it follows that, where the trial Court has passed only one decree, there can be sub stituted for that decree only one decree, should the case come up in appeal. So, while it may be that for purposes of procedure and in order to formally complete the records it may be necessary in the case of cross‑appeals to draw up a separate decree in each case, there is, in fact, only one and the same decree, which ought to be incorporated with each appellate record. Either decree, read, if necessary, for purposes of interpretation with the decree of the trial Court ought to produce the same result." Ashworth J. said :‑ "The Civil Procedure Code only contemplates a single decree at one time in any one suit. So far as any rules in the schedule provide to the contrary they should be amend ed. So far again as any practice of the Court recognizes more than one decree in one suit, that practice should be discontinued whether the practice is carried out in the filing of records or otherwise. Whenever an appellate Court decides an appeal against a decree of a lower Court, the appellate Court should frame as its decree a comprehen sive document, which would remove all need or reference to any other document for the purpose of knowing what must be held to be the adjudication in the whole suit. It is more desirable for the appellate Court 'to frame a document settling the actual final adjudication than to leave it to a lower Court to do so in execution or otherwise by harmoniz ing the various documents on the file miscalled `decree'. A decree set aside by an appellate order or swallowed up by a final decree should have endorsed thereon this fact." Lindsay, J. referred to Bailey v. Finch (20 WR 294.) where Phear J. had said :‑‑ "It is, however, obvious that when two parties to a suit appeal so that the one appeal is but the cross‑appeal of the other, there ought to be only one final decree made between two parties." The judgment in Damodar Das v. Sheoram Das (ILR 29 All. 730) deserves attention. That case related to a suit for accounts which had been decreed in part. Both parties appealed and the learned District judge who heard the appeals decided in favour of the defendants. The plaintiff filed a second appeal only against the decree passed in the appeal filed by the defen dants. It was objected on behalf of the defendant that the appeal was barred as the plaintiff had failed to appeal against the decree in his own appeal. The lower appellate Court had in fact drawn up two separate decrees in the two appeals in exactly similar terms. It was held by the learned Judges that "there was, in fact, but one decree settling the accounts between the parties". This case is a direct authority in favour of the view that in the case of cross‑appeals there is but one decree or what is the same thing, the two decrees are dupli cates. I may point out that if the view I put forward‑ is cor rect, the result will be duplicate decrees in cross‑appeals, for each appeal must cover the whole of the decree that subsists in the suit after the appeal is disposed of. Damodar Das v. Sheoram Das approved in a Full Bench case of the Allahabad High Court, i. e. Ghansham Singh v. Bhola Singh (A I R 1923 Alt. 490,) The learned Judges said about this case : "In our opinion it was rightly decided, and not being in pari materia with the case of Zaharia v Debiao ((1910) 33 All. 51 (F B)) cannot be said to have been overruled by that case. In Damodar Das v. Sheoram Das ((1907) 29 All. 730.) the Court rightly treated the two decrees as being in substance one, though drawn up in duplicate", Damodar Das v. Sheoram Das has even been approved in a Full Bench case of our own High Court, that is Mst. Lachhmi v. Mst. Bhulli (A I R 1927 Lah. 289). A reference to it will be found at pp. 298 and 304 of the report. The wording of section 110 also lends support to the interpretation that the cross‑appeals are to be regarded as one proceeding. It will be observed that the section nowhere refers to the value of the subject‑matter of appeal before the High Court. On the other hand, it refers to the value of the subject‑matter in the Court of the first instance. This reference to the Court, of first instances is wholly inappropriate if cross‑appeals are to be separately considered. At the same time, it is to be noted that in all cases where the view as to distinct nature of decrees in cross‑appeals has been upheld, it has never been insisted upon that there should be more than one appeal to the Privy Council. If the decrees in cross‑appeals are different, there should be one appeal with respect to each decree. Another important provision which I may cite in this connection is Order 45 rule

5. It provides that if the parties be not agreed as to the value of the subject‑matter in the Court of first instance or the value of the subject‑matter on appeal to the Federal Court, the Court may direct an enquiry into the question. It is to be noted that there is no provision for an enquiry as to value of the subject‑matter of appeal to the High Court. It is difficult to think of any explanation for this omission except that the legislature does not take into consideration the value of appeal to the High Court at all for the purpose of deciding the right of appeal to the Federal Court. This provision, particularly when read along with Order 45, rule 4, becomes an argument of forces in favour of the view that cross‑appeals are not to be considered separate proceedings for the purpose in view. That a number of anomalies will arise if decrees in cross -appeals be regarded as distinct decrees cannot be denied. For one anomaly I may refer to the case of a cross‑objection. It is admitted that if instead of an appeal a party files a cross‑objection the decree of the appellate Court would be one and the party would be entitled to a certificate if the subject‑matter of the appeal as well as cross‑objections put together be more than Rs. 10,000 and the other requisite conditions are satisfied, but if instead of a cross‑objection, a cross‑appeal be filed entirely different results would, according to all the judgments cited by the respondent, follow. This fact is specifically recognized in Benares Bank, Agra v. Rajnath (A I R 1935 All. 374 (F. B)). I may here observe that as held in a Full Bench judgment of our Court cited as Labhu Ram v. Ram Partab (A I R 1944 Lah. 76.), an appeal, if it becomes time‑barred, can be treated as a cross‑objection. The result would be that in the case of cross‑appeals a party would be in 'a much stronger position for the purpose of obtaining a certificate for appeal to the Federal Court if he had filed the appeal out of time. Other anomalies may be explained by reference to some examples. A files a suit against B for Rs. 18,

000. It is decreed for a sum of Rs. 17,

000. The defendant files an appeal. The sum is reduced to Rs. 16,

000. It is well established in view of the Privy Council judgment in Annapurnabai and another v, Ruprao that the defendant has a right to a certificate for appeal. The decree is one of variance and value of the subject‑matter, of the appeal to the High Court; the appeal to the Federal. Court, and in the Court of first instance is more than Rs. 10,

000. Assume now that (the, suit being based on two items of Rs. 9,000, each) the trial Court decrees the suit for. Rs. 9,000 as regards one item and dismisses it as regards the other and both parties appeal. The appal of the plaintiff is accepted and that of the defendant dismissed. Now there is a full decree against the defendant for Rs. 18,

000. Them is much greater difference in the decrees of the two Courts in this case than there was in the previous example. In that case the variance was only of Rs. 1,

000. Here the variance is of Rs. 9,

000. Yet the party has got no right to a certificate for appeal for both the appeals are to be regarded as distinct. In neither of them the value of the subject‑matter is Rs. 10,000 or more. We have to remember that once we accept that the decrees in appeals arising out of the same suits are distinct decrees, wd must, at the same time, lay down that in all such cases, even when the appeal were heard by the District Court, separate further appeals must be filed. The results would be remarkable. A files a suit for possession against ten defendants. All the ten defendants file separate appeals with respect to their own interests. If what the respondent before us urges be good law, on the appeals of the ten defendants succeeding the plaintiff will have to file ten appeals. It may be remembered that this is not merely a technical question. It may have a very serious effect on the Court‑fee that is to be paid on the appeal. If the value of the subject‑matter is ten lacs., the plaintiff has to pay. Court‑fee on one lac in each of the ten appeals which he has' to file and the Court‑fee will be many times that which he has to pay if he files one appeal which has a subject‑matter of ten lacs. Even a worse case can be imagined. A suit for possession is filed against ten joint trespassers, who have no defined shares in the land in dispute. The suit is decreed. All the defendants file separate appeals and succeed. The plaintiff will have to pay Court‑fee on the value of the whole property in each of the ten further appeals. I have already referred to the anomaly that will be created in view of the provisions of Order 45, rule

4. Following are the conclusions that I have reached on a consideration of the matter involved. When an appeal is, presented, the appellate Court is seized of the whole dispute though the appeal be directed against a part only of the decree. It is the duty of the appellate Court to consider not only whether the prayer of the appellant should be granted or rejected but to what extent the decree of the lower Court should be interfered with. After the appeal is disposed of, there is no longer in existence any decree of the trial Court for whatever decree subsists after the judgment of the appellate Court is the decree of the Court of Appeal. As a result, when two cross‑appeals are disposed of at one time the decree in each appeal whatever its actual wording is identical, that is, each decree includes the whole decree that remains in the suit. To illustrate by an example, A sues B for Rs. 20,000 and the Court decrees the claim for Rs. 11,

000. Both parties appeal. The appeal of plaintiff is accepted and the decree enhanced to Rs. 15,

000. The decree of the appellate Court in each of the two appeals is for Rs. 15,000 in favour of the plaintiff. If a party wants to file an appeal to the Federal Court, he need appeal against one of the decrees only. He may appeal against both in one appeal for the decrees are identical. It may be asked, what will happen if the Court were to hear the two cross‑appeals at two different times? There is no doubt that there is no provision in the C. P. C. prohibiting the hearing of two cross‑appeals at different times though such an event will seldom happen. I will not, in the present case, go into the question whether the hearing of the second cross‑appeal will not be barred by res judicata. I will assume that the second cross‑appeal can be heard and determined on the merits. The answer to the question is not at all difficult. When the first cross‑appeal is heard, the appellate Court will make a decree that covers the whole suit and when the second cross‑appeal is concerned the decree will cover the whole suit. If the later decree is different from the earlier, it will supersede the earlier. In such a case a party wanting to appeal to the Federal Court shall have to appeal against the later decree if he wants to attack the whole decree. I have stated my conclusions and I will now refer to cases cited by either party. I have considered them fully and have not derived any help from them because the precise question we have formulated and which to my mind‑ is ‑ crucial has not been discussed in any of them. The petitioner has not got many cases to cite on the point in dispute. The only case of cross‑appeals which is in his favour is Thakur Jamuna Prasad Singh v. Jagarnath Prasad Singh (ILR 9 Pat, 358). That was a suit to enforce a mortgage. The mortgagees obtained a decree in the trial Court but their claim as to interest pendente lite was rejected. The defendants appealed to the High Court in respect of the amount decreed and the plaintiffs preferred an appeal in respect of interest. The defendants' appeal was dismissed. In the plaintiffs' appeal the decree in ‑so far as it related to interest was varied in favour of the plaintiffs. The defendants applied for leave to appeal to His Majesty in Council. So far as .the subject‑matter of the appeal to the Privy Council was concerned, it was more than Rs. 10,

000. So far as the appeal by the defendants to the High Court was concerned, its subject‑matter was more than Rs. 10,

000. However, so far as the appeal of tire plaintiffs was concerned, its subject- matter was less than Rs. 10,

000. It was urged on behalf of the plaintiffs that in so far as the defendants' appeal was concerned, the decree of the Court below was affirmed and in so far as their own appeal was concerned, the change in the rate of interest would not change the character of the decree. On behalf of the petitioner it was urged that the decree of the Court as a whole should be looked at and that in the decree as a whole there was a variation. The learned judges referred to Annapurnabai and another v. Ruprao and held that in the circumstances a right to a certificate existed. It may be conceded that the point as to whether two decrees should be regarded as one is not discussed in the case. All that can be said is that it is a case wherein the decision is in favour of the petitioner. Thakur Jamuna Prasad Singh v. Jagarnath Prasad Singh was followed in Brajasundar Deb v. Rajendra Narayan, a case to which I have already referred. Of the authorities cited by the respondent, I will take up the Lahore cases first. In Asa Ram v. Kishan Chand (I L R 11 Lah. 465) a suit had been filed by the mortgagees of certain property for ejectment of the mortgagors, for arrears of rent, and for interest on such arrears. The trial Court decreed the suit but did not allow the rate of interest in full. Both parties appealed to the High Court. The appeal of the defendant -mortgagors was dismissed. The appeal of the plaintiff mortgagees which was limited to the question of interest was accepted and the amount of interest was increased. The defendants applied for leave to appeal to the Privy Council. It was urged for the defendants that the value of the appeal to the Privy Council was more than Rs. 10,000, the value of the subject‑matter of the original suit was more than Rs. 10,000 and the decree was one of variance and that they had a right to a certificate. This contention was rejected. It was held that there were two distinct decrees passed in the two appeals. As regards the defendants' appeal, though the subject‑matter was more than Rs. 10,000, the decree was one of affirmance. As regards the plaintiffs' appeal, the decree was one of variance but the subject‑matter of the appeal was less than Rs. 10,

000. The judgment assumes without discussion the separate entity of the cross appeals. I have already pointed out that section 110 does not refer to value of the appeal. In Banarasi Dass & Sons v. Delhi Iron Syndicate (A I R 1937 Lah. 916) a suit had been filed for recovery of Rs. 34,

000. The trial Court passed a decree for Rs. 11,

950. Both parties appealed to the High Court. The appeal of the plaintiff was dismissed. The appeal of the defendants was accepted to the extent that the decretal amount was reduced to Rs 6,

080. The plaintiffs applied for leave to appeal to the Privy Council and a contention similar to that before us was put forward. The contention was rejected as it had been rejected in Asa Ram v. Kishen Chand though the reasons were slightly different. So far as the appeal by the plaintiffs was concerned, it was pointed out that the decree in that case was one of affirmance. So far as the appeal by the defendant was concerned, the subject‑matter in that appeal was more than Rs. 10,000 for a decree had been passed for Rs. 11,950 which the defendant was challenging. At the same time, it was admitted that the decree was one of variance. The ground on which the application was rejected was that .the decree being distinct the appeal to the Privy Council in so far as it arose out of this decree would not have a subject‑matter of Rs. 10,000 or more. The subject matter of the appeal to the Privy Council qua this appeal would be the difference between the sum decreed by the trial Court and that decreed by the High Court, i.e., about six thousand rupees. It may be pointed out that the same learned Judges who decided Banarsi Dass & Sans v. Delhi Iron Syndicate had in a later case reported as Hakim Rai v. Ganga Ram (A I R 1938 Lah. 836.) granted a certificate where the value of appeal to the Privy Council qua the cross‑appeal was less than Rs. 10,

000. The next case cited on behalf of the respondent is Benares Bank. Agra v. Rajnath, which is relied upon in Banarsi Dass & Sons v. Delhi Iron Syndicate. That case no doubt fully supports the contention of the respondent in the present case. In that case a suit had been brought for a sum of money on the basis of certain hundis and advances. The trial Court decreed the suit in so far as it related to the hundis. Both parties appealed to the High Court. These appeals were heard together and disposed of by of judgment but two separate decrees were prepared. The value of the subject‑matter in each appeal was more than Rs. 10,000 The defendant's appeal had been accepted and the suit in so far as it related to the decreed items dismissed. The plaintiff's appeal was, however, dismissed. Two applications for leave to appeal to the Privy Council were put in by the plaintiffs. So far as the defendant's appeal was concerned, the applica tion had been granted. So far as he plaintiffs' appeal was concerned, it was held by the Full Bench that the decree being one of affirmance, there was no right to a certificate. The learned Judges referred to a previous decision of their own Court reported as Chiranji Lal v. Pehari Lal (A I R 1918 All. 245.) where it had been held that in cases of cross‑appeals there are two distinct decrees. The question before the learned Judges was whether Annapurnabai and another v. Ruprao should be deemed to have overruled Chiranji Lal v. Pehari Lal and they reached the conclusion that it had not been overruled. Annapurnabai and another v. Ruprao was not a case of cross appeals and therefore it was not regarded as covering the point in dispute. While the learned judges accepted that in the case of cross‑objections there is only one decree, they held that in case of cross‑appeals two decrees have to be prepared and they must be regarded as distinct decrees for the purposes of sections 109 and 110 C. P. C. So far as Chiranji Lal v. Pehari Lal is concerned, I may point out that it is a very short judgment and contains no reasoning. Another case cited on behalf of the respondent, which relates to cross‑appeals is Chokkalingam v. Official Assignee (A I R 1941 Mad, 227). That case too affirms the same proposition as has been laid down in Benares Bank, Agra v. Rajnath. Rather it goes a step further and holds that even cross‑objections are governed by the same rules as cross‑appeals and the decree in a cross -objection too should be regarded as a distinct decree: None of these cases is of any great help in the decision of the ques tion before us. Some other cases are referred to by learned counsel for the respondent dealing with the situation when the appellate Court affirms the decree of the lower Court in respect of one matter and reverses it or varies it in respect of another matter. There is a difference of opinion as to whether the word "decision" used in section 110 means the same thing as decree. It has been held in the majority of cases that the word "decision" refers to different matters which are adjudicated upon by a decree with the result that an appellate decree which varies the decree of the Court below may be affirming the decision of the Court below on any particular matter and with respect to that decision it is to be regarded as a decree of affirmance, for the purpose of section

110. Frajasunder Deb v. Rajendra Narayan, the Special Bench case of the Patna High Court to which I have already referred, holds, on the other hand, that the word "decision" is used in section 110 in the same sense as decree. With this conflict we ate not in the present case concerned. Here the decree does not comprise more than one matter. The claim against Saeed Ahmad was for a sum of Rs. 10,000 which he received from a particular person. Shabir Ahmad J. giving Saeed Ahmad the benefit of some debt due from the Company awarded a partial decree. On Letters Patent Appeal the full claim was decreed. I would answer the first question referred to us in the negative. I have already explained that in cross‑appeals disposed of at one time the decrees being identical a party can file an appeal against one or both. If the cross-appeals be heard at different' times and the later decree be different from the earlier, it will supersede the earlier and a party shall have to appeal against the later decree if he wants to attack the whole decree. I would answer the second question in the affirmative. RAHMAN, J.‑I have had the advantage of seeing the judgment which my brother Kaikaus proposes to deliver in this case. I agree that the second question referred to the Full Bench should be answered .sin the affirmative. I also agree that the first question be answered in the negative but in my judgment, this answer need not lead to the inference that' in all cases of cross‑appeals directed against distinct "decision" of the trial Court, in one suit, an appeal would be, as of right, to the Federal Court. I am inclined to the view that in some cases of the latter type, the principle enunciated in two F. B. decisions of this Court and reported as Brahma N and v. Shree Sanatan Dharam Subha (I L R 1945 Lah. 156) and Wahid‑ud‑Din v. Makhan Lal (I L R1945 Lah. 242) may well be found to be applicable. That principle is that for purposes of section 110, C. P. C., a decree or order appealed from is to be regarded as one of affirmance when it partly maintains the decision of the Court below and partly reverses it, if the appeal to be taken to the Federal Court is confined to that part of the decree or, order, which has been affirmed. It is needless to add than the case which has given rise to the present reference does not conform to that type as the order of the learned Liquidation judge in this case does not include "decision" on distinct matters. ORTCHESON, J.‑I agree with Kaikaus, J. K. M. A. Reference answered.