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Civil Miscellaneous Petition No. 46/C of 1953, decided on 6th May 1954, under section 109 read with section 110, C. P. C., for leave to appeal to the Federal Court of Pakistan against the judgment and decree, dated the 15th April 1953, passed by Mr. Justice Muhammad Khurshid 4aman and Mr. Justice B. Z. Kaikaus of the High Court of Judicature at Lahore in Letters Patent Appeal No. 34 of 1952.

(This case was referred to the, above noted Full Bench by the Division Bench consisting of Mr. Justice Muhammad Khurshid Zaman and Mr. Justice B. Z. Kaikaus, vide their Lordships' order dated the 14th December 1953).

Appeal against part of decree‑Court may deal with whole decree.

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 juris diction 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, however, 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 the function of a Court of appeal. In the second place, though the powers may be exercised in exceptional 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 not to exercise the discretion.

Failure on part of lower appellate Court to consider whether to exercise power under, O. 41, r. 33 is revisable.

If a District judge while hearing an appeal failed to con sider 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.

A I R 1926 Pat: 40 ref.,

Decrees in appeals arising out of same suit not to be regarded as distinict decrees for purposes of section 110, C. P. C.

That the legislature regards cross‑appeals as one pro ceeding 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 reasonable 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.

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 instance 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.

Once there has peen an appeal the decree of the appellate Court comprises the whole decree that remains in the suit, even though the appeal was directed against a part only of the decree.

After appeal the only decree that can be executed is the decree of the appellate Court whether it reverses; modifies or confirms the decree of the lower Court.

It seems 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 super seded by or becomes merged. in the decree of the appellate Court and 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 is that there is only one decree to be executed and that is the decree of the appellate Court.

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.

It may be asked, what will happen if the Court were to hear toe two cross‑appeals at two different times

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. (Per Kaikaus, J).

I L R 15 Mad. 170, I L R 18 Mad. 214, A I R 1941 Pat. 269, I L R 29 All. 730, A I R 1923 All. 490, I L R 33 All. 51, 20 W R 294, A I R 1928 All. 274, A I R 1927 Lah. 289, A I R 1935 All. 374, A I R 1944 Lah. 76, I L R 9 Pat. 358, I L R 11 Lah. 465, A I R 1937 Lah. 916, A I R 1938 Lah. 836, A I R 1918 All. 245, A I R 1941 Mad. 227, I L R 51 Cal. 969, AIR 1944 Lah. 329, AIR 1945 FC 5, ILR 26 Mad. 91, A I R 1916 Mad. 883, I L R 32 All. 295 (P C), A I R 1927 Cal. 89, 4 All. 376, A I R 1939 Sind 329, T L R 4 All. 376, I L R 18 Bom. 542, 6 C L J 542 and I L R 11 All 267.

But this answer need not lead to the inference that in all cases of cross‑appeals directed against distinct "decisions" of the trial Court, in one suit, an appeal would be, as of right, to the Federal Court. In some cases of latter type; the principle 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 betaken to the Federal Court is confined to that part of the decree or order which has affirmed may well, be found to be applicable. (Per Rahman, J.)

I L R 1945 Lah. 156 and I L R 1945 Lah. 242 rel. on.

A. D. Malik, for Petitioner.

Mian Muhammad Shahs and Nazar Muhammad, for Respondents.

‑‑The Official Liquidator of the Indo Enamel Works Ltd., Lahore, applied on the 1st December 1949, against two directors of the company, namely, Saeed Ahmad and Ehsan Ilahi, for orders that they should pay to, him Rs. 10,000 and Rs. 1,925, respectively, on account of the money which they had received from one Mr. Bhoosri as directors of the company. We are in the present case concerned only with the application in so far as it relates to Saeed Ahmad Director. The learned Single judge who heard the application passed an order directing Saeed Ahmad to pay Rs. 5,998. Both Parties, i.e., .the Official Liquidator ash well as Saeed Ahmad, filed Letters Patent Appeals against this order. On the 15th of April 1953, we rejected the appeal of Saeed Ahmad and, accepting the appeal of the Official Liquidator, directed Saeed Ahmad to pay the full amount, i.e., Rs. 10,000. Saeed Ahmad wants to file an appeal to the Federal Court against that order and has put in this application under sections 109 and 110 C. P. C.

The first point argued by the learned counsel for the petitioner is that the value of the subject‑matter of the proceedings being Rs. 10 000 and the decree of the Court not being a decree of affirmance, the conditions mentioned in section 110, C. P. C. are satisfied and, therefore, the petitioner is entitled to a certificate as of right. In order that a party may be entitled to a certificate as of right three conditions are to be satisfied. The first is that the value of the subject‑matter of the suit in the Court of first instance should be not less than Rs. 10,000. The second is that the value of the subject‑matter of the appeal to the Federal Court should be not less than Rs. 10,000. The third is that the decree should not be one of affirmance. In the present case it is obvious that if our decrees in the two cross‑appeals be regarded as one‑ decree, all the three conditions are satis fied. The question for decision is whether the decrees in the two cross‑appeals are to be regarded as one decree.

We may explain that the fact that variance in the decree is of less than Rs. 10,000 does not make any difference. It is settled law on account of a judgment of the Privy Council in Annapurnabai v. Ruprao (AIR 1925 PC 60.) that the variance need not be of an amount equal to or exceeding Rs. 10,000. If the value of the subject‑matter of appeal and the value of the subject‑matter of the suit in the Court of the first instance are Rs. 10,000 or upward and the decree be of a variance there is a right of appeal although the variance affects the decree to the extent of less than Rs. 10,000. For instance, if a suit is filed for As. 15,000 and is wholly decreed and on appeal by defendant there is a reduction of Rs. 2,000 in the amount decreed, the defendant will be entitled to file an appeal to the Federal Court. A difficulty is in the present case created by the fact that we are dealing with decrees in two appeals and although the conditions as to the value of the subject‑matter on appeal to the Federal Court, the value of the subject‑matter in the Court of the first instance and the decree being one of variance are satisfied, if the decrees in the two appeals be regarded as separate and distinct decrees, there will be no right of appeal, for in one appeal the decree is one of affirmance and in the other, although the decree is one of variance, the subject‑matter of the appeal itself was less than Rs. 10,000. There are two Division Bench judgments of this Court reported as Asa Ram v. Kishen Chand (ILR 11 Lah. 465.) and Banarsi Das v. Delhi Iron Syndicate (A I R 1937 Lah. 916.), in which this view has been taken. In I L R 11 Lah. 465. the mortgagees of certain property, sued the mortgagors and their representatives‑in‑interest for ejectment, arrears of rent and interest on arrears of rent. The suit was decreed by the trial Court but interest, was allowed only at the rate .of 1 lo per mensem instead of 2010 per mensem which had been claimed. From this decision both parties appealed to the High Court. The appeal of the defendant mortgagors was dismissed. The appeal of the plaintiff- mortgagees which was confined solely to the question of interest was accepted. The defendants applied for leave to appeal to the Privy Council. The value of the appeal to the Privy Council was admittedly more than Rs. 10,000. The value of the original suit was also more than Rs. 10,000. The value of the subject‑matter of the appeal filed by the defendants in the High Court was more than Rs. 10,000 but of the one filed by the plaintiffs was less than Rs. 10,000. The learned judges first considered the question whether even a slight variation would make the decree one of variation, and agreed that that would be so. They rejected, therefore, the contention put forward on behalf of plaintiff mortgagees that as the variation was only a slight one, it should not be regarded as a variation at all. The learned judges proceeded, however, to state that there were two appeals before the Court and although one consolidated decree had been drawn up there were in reality two decrees. So far as the appeal of the defendants was concerned, the decree was one of affirmance although the value of its subject‑matter was more than Rs. 10,000. An appeal could not be filed against the decree in the defendants' appeal unless a substantial question of law was involved. As regards the appeal of the plaintiffs, the value of that appeal was less than Rs. 10,000 and, therefore, although the decree was one of variance, an appeal did not lie as of right. In A I R 1937 Lah. 916, a suit was filed for recovery of Rs. 34,000. The trial judge passed a decree, for Rs. 11,950. Both parties appealed to the High Court. Both appeals were heard together. The plaintiff's appeal was dismissed while that of the defendants was accepted in part and the amount of Rs. 11,950 was reduced to Rs. 6,080. The plaintiffs applied for leave to appeal to the Privy Council and the question arose whether they were entitled to appeal as of right. The learned Judges held that there were in' existence two appellate decrees. So far as the decree in the appeal filed by the plaintiff was concerned, it was a decree of affirmance and an appeal did not lie, useless a substantial question of law was involved. So far as the appeal of the defendants was concerned, the decree was one of variance but the value of the appeal to the Privy Council qua the decree in the defendants' appeal was only Rs. 5,882. They held, therefore, that the plaintiffs were not entitled to appeal to the Privy Council as of, right.

The judgments in the two cases cited above do not, it appears to us, lay down the law correctly and, in any case, it is a matter which requires further consideration. The judgments are short and do not contain a full consideration of relevant matters. In I L R 11 Lah. 465, reliance had been placed on the fact that the value of the plaintiffs' appeal to the' High Court was less than Rs. 10,000 whereas Section 110 C. P. C. makes .no reference to such value. Section 110 refers only to the value of the suit in the Court of first instance and value of appeal to the Privy Council. In A I R 1937 Lah. 916, although the value of the appeal to the Privy Council was more than Rs. 10,000 it was held that the value of such appeal in so far as it arose out of the defendants' appeal to the High Court (in which a decree of variance had been a passed) was less, than Rs. 10,000: It is a matter for consideration whether the C. P. C. con templates more than one appeal by the same party in the same suit.

A number of anomalies may be created if decrees in appeals arising out of the same suit are regarded as distinct decrees for the purposes of section 110 C. P. C. One obvious case is that of cross‑objections. Whereas decrees passed in cross‑appeals are regarded separate decrees, if the same party instead of filing an appeal files cross‑objections, the result is different even according to the case reported as Benares Bank Ltd. v. Rajnath Kunzru (I L R 57 All. 873) which was followed in A I R 1937 Lah. 916. On principle there does not seem to be any reason why there should be different results in the two cases. Other anomalies arising may be illustrated by taking a concrete case. A files a suit against B for Rs. 18,000. It is decreed in full. Defendant files an appeal and the decree is reduced by Rs. 2,000. It is well- settled that the defendant has a right of appeal. Suppose that in this case there are two items of Rs. 9,000 each. The Court decrees the suit in respect of one item and dismisses in respect of the other. There is thus a decree for Rs. 9,000 only. Both parties appeal. In the appeal of the plaintiff he is granted a decree for Rs. 7,000 in respect of the item which had been rejected‑by the trial Court. In the appeal of the defendant the decree is reduced from Rs. 9,000 to Rs. 5,000 in respect of the item decreed by the trial Court. Now there is a decree in the suit for Rs. 12,000 against which the defendant was to appeal. The appellate Court has interfered with the items in suit to the extent of Rs. 11,000 and yet, according to the two Division Bench judgments mentioned above, the defendant has not got a right of appeal because of the two decrees being regarded as separate. In respect of each decree the value of the subject‑matter of the appeal to the High Court as well as the value of the subject‑matter of appeal to the Privy Council is less than Rs. 10,000.

We may refer to Order 45 rule 4 C. P. C. which provides that for the purposes of pecuniary valuation suits involving substantially the same questions for determination and decided by the same judgment may be consolidated. It is to be noted that while with respect to separate suits there is a provision for consolidation so that the cumulative value is to be the value of the subject‑matter for the purpose of appeal to the Privy Council, there is no such provision as regards appeals arising out of the same suit. It is difficult to imagine that while the Legislature intended in case of separate suits that their values be put together so as to affect the right of appeal, it intended to keep appeals arising out of the same suit separate so that the values of subject‑matters of such appeals are not to be considered together. This provision suggests, and probably the only explanation of the omission of provision for consolidation of appeals in the same suit is, that decrees arising out of the same suit are not regarded as distinct decrees at all. Section 110 refers to the value of the subject‑matter of the suit in the Court of first instance. If appeals arising out of the same suit were regarded as distinct proceedings, the reference to the value of the suit in the Court of the first instance would be wholly inappropriate and it is the value of such appeal and not of the original suit that would be mentioned as the test for competency of appeals.

What has been held in I L R 11 Lah. 465 and A I R 1937 Lah. 916 would make it incumbent upon every party who wants to appeal against the decision in two cross‑appeals arising out of the same suit to file two appeals. It is to be observed that in A I R 1937 Lah. 916 even, the value of the subject‑matter of the defendants' appeal was more than Rs. 10,000 ; only the variation was of less than Rs. 10,000. The learned Judges were of opinion that the value of the appeal to the Privy Council (although it was more than Rs. 10,000) was less than Rs. 10,000 in so far as it arose out of the defendants' appeal. Although the appeal to the Privy Council was in fact one they regarded it as made up of two appeals one directed against the decree of the High Court in the plaintiffs' appeal and the other against the decree in the defendants' appeal If what is laid down in the above mentioned cases is good law, then parties will have to file separate appeals whenever they intend attacking decisions in more than one appeal Arising out of a suit, even in case of appeals decided by a District Judge. There may ' be cases in which even more than two appeals have been filed and any person aggrieved by the order in those appeals may have to file a number of appeals. Also it is a matter for considera tion whether an appeal, although it relates to a part of the decree, is not an appeal from the whole decree. Under Order 41, rule 32 C. P. C., the appellate Court can either affirm or vary a decree and cannot dismiss an appeal at all. Does it affirm the Whole decree or the part that was appealed against Under Order 41, rule 33, the Court of appellate jurisdiction when dealing with an appeal directed against a part is empowered to interfere with the whole decree. In fact, their Lordships of the Privy Council said in A I R 1926 P C 93 that an appeal is against the decree as passed though it relates to a part. All these matters require careful consideration.

We would, therefore, refer the following questions for decision by a Full Bench :‑‑

1. "Are decrees in appeals arising out of the same suit to be regarded as distinct decrees for the purpose of section 110 C. P. C."

2. In the present case is the petitioner entitled to a certificate as of right .

‑The Indo Enamel Works Ltd., a company registered at Lahore, had gone into liquidation. The Official Liquidator of the Company applied on the 1st of December 1949, against Said Ahmad and Ehsan Elahi, Directors of the Company, for recovery from them of Rs. 10,000 and Rs. 1,925 respectively, under section 185 of the Companies Act. With the result of that application, in so far as it related to Ehsan Elahi, we are not concerned. Against Said Ahmad an order was passed by Shabir Ahmad, J. directing him to pay Rs. 5,998. Against this order both parties filed Letters Patent Appeals, Said Ahmad claiming that the application should be dismissed and the Official Liquidator claiming that the full sum of Rs. 10,000 should be awarded. These appeals came up for hearing before me and Khurshid Zaman, J. By an order dated the 15th of April 1953, we dismissed the appeal of Said Ahmad and accepting that of the Official Liquidator decreed the full sum of Rs. 10,000. Said Ahmad put in an application praying for leave to appeal to the Federal Court. It was urged on his behalf that the requisite conditions of sections 109 and 110 of the C. P. C. were satis fied; the value of the subject‑matter of appeal to the Federal Court was ten thousand rupees, the value of the subject‑matter in the Court of first instance was ten thousand rupees and the decree or order was not one of affirmance; and, therefore, the petitioner was entitled to a certificate as of right. On behalf of the respondent it was contended that the decrees in the two appeals should for the purpose of appeal to the Federal Court be considered as two separate decrees. In view of the importance of the matter involved we referred the following two questions to a Full Bench:-

(1) Are decrees in appeals arising out of the same suit to be regarded as distinct decrees for the purpose of, section 110 C. P. C.

(2) In the present case is the petitioner entitled to a . certificate as of right

The reason for framing the second question was the possi bility of the answer to the first question not being decisive as to whether a right to a certificate existed. Even if the decrees in the cross‑appeals be regarded as one it may have been possible for the respondent to argue that the variation ought to be of a value of not less than Rs. 10,000. On the other hand, the possibility of an argument in favour of the right of petitioner to a certificate even if the answer to the first question be against him could not be excluded. We, therefore, regarded it proper to frame the second question which is in general terms. It is clear, however, after the con clusion of the argument before the Full Bench that if the answer to the first question be against the petitioner the second question has to be answered against him. On the other hand, it is also clear that if the first question be answered in favour of the petitioner, he would be entitled to a certificate, for the variation need not relate to Rs. 10,000 or more. Although this point is really covered by the second question, I will deal with it before I begin a consideration of the first question because the Privy Council judgment which decides this point is referred to even in judgments relating to the first question and also because in order to be able fully to appreciate the argument with respect to the first question it is helpful if we know the correct position with respect to this matter. It will be convenient to quote here sections 109 and 110 of the Civil Procedure Code. They run:--

"109. Subject to such rules as may, from time to time, be made by His Majesty in Council regarding appeals from the, Courts of the Provinces and the Capital of the Federation, and to the provisions hereinafter contained, an appeal shall lie to His Majesty in Council‑

(a) from any decree or final order passed on appeal by a High Court or by any other Court of final appellate jurisdiction ;

(b) from any decree or final order passed by a High Court in the exercise of original civil jurisdiction ; and

(c) from any decree or order, when the case, as herein after provided, is certified to be a fit one for appeal to His Majesty in Council."

"110. In each of the cases mentioned in clauses (a) and (b) of section 109, the amount or value of the subject- matter of the suit in the Court of first instance must be ten thousand rupees or upwards, and the amount or value of the subject‑matter in dispute on appeal to His Majesty in Council must be the same sum or upwards,

or the decree or final order must involve, directly or indirectly, some claim or question to or respecting property of like amount or value,

and where the decree or final order appealed from affirms the decision of the Court immediately below the Court passing such decree or final order, the appeal must involve some substantial question of law."

The Privy Council judgment to which I have referred is Annapurnabai and another v. Ruprao (I L R 51 Cal, 969,). In that case one R claiming to be the adopted son of S (who had died) filed a suit for possession of the property of S. The suit was resisted by A the widow of S, and one K who too claimed to be the adopted son of S. The, widow pleaded that in case the adoption of K was not proved she was entitled to maintenance. The trial Court decreed the suit subject to a payment of Rs. 800 a year to the widow. The defendants appealed to the Judicial Commissioner, who while otherwise upholding the trial Court's decree increased the maintenance of the widow to Rs. 1,200 a year. The defendants applied to the Judicial Commissioner for leave to appeal to the Privy Council but the application was dismissed. The defendants then applied to the Privy Council for special leave. I quote below the argument as well as the judgment both of which are short :‑

"Sir George Lowndes, K. C., and Wallach, for the petitioners. The petitioners had a right of appeal to the Privy Council under sections 109 and 110 of the Code of Civil Procedure. The recognized practice of the Board is to apply for special leave and not to appeal from a refusal of leave : Rahimbhoy Habibhoy v. Turner ((1890) LR 181 A 6.). The value of the subject‑matter of the suit exceeded Rs. 10,000, as also did the subject‑matter of the proposed appeal; even if the maintenance alone is regarded as in dispute, its value, having regard to the widow's prospects of life, exceeded. Rs. 10,000. The Appellate Court did not affirm the decree of the first Court but varied it ; consequently it is not material under section 110 whether any substantial question of law is involved. Having regard to the concurrent findings, the petitioners desire to appeal only with regard to the amount of the maintenance.

The respondent did not appeal.

The judgment of their Lordships Awas delivered by Lodd Dunedin. In the opinion of their Lordships the contention of the petitioners' counsel as to the effect of section 110 of the Code is correct. They had therefore a right of appeal. Special leave to appeal should be granted but should be limited to the question of maintenance. The petitioners' chance of success is not material to their application.

Their Lordships will humbly advise His Majesty that special leave to appeal be granted, but that it should be limited as already stated."

This judgment has caused a difference of opinion in its interpretation. It has been held in some cases that their Lordships had agreed with learned counsel for the petitioners and had granted leave for the whole appeal and that the limitation of the appeal to the maintenance allowance was due to the concession made by learned counsel. In other cases it has been pointed out that even the value of mainte nance exceeded Rs. 10,000 and it has been held that leave had been limited to the question of maintenance by their Lordships because the two matters one of adoption and the other of maintenance were distinct and that a variation with respect to maintenance could not entitle the party to a certificate for appeal as to adoption, for the decree of the judicial Commis sioner would not be one of variance so far as adoption was concerned. In the last mentioned set of cases the conclusion reached is that if the decree of the lower Court comprises distinct matters, a variation with respect to one of such matters would not entitle the party to appeal with respect to another matter in relation to which the decree of lower Court has beer affirmed by the High Court. All important cases on the point have been reviewed by Din Muhammad, J. in Mahant Brahma Nand v. Shree Sanatan Dharam Sabha (A I R 1944 Lah. 329 (F B)), and no useful purpose will be served by referring to them in any detail, for the difference in opinion does not affect the present case.

The present is not a case which could be said to comprise more than one matter. There is unanimity between the High Courts on the point that with respect to a single subject matter it is not necessary that the variance be for Rs. 10,000 or more, nor is it necessary that the variance be against the petitioner. These propositions necessarily follow from Annapurnabai and another v. Ruprao (supra). It would be clear, therefore, that if the answer to the first question be in favour of the petitioner, he would be entitled to leave to appeal.

I proceed now to discuss the first question. The answer to this question depends on what we regard as the contents of an appellate decree. In a civil suit the function of a trial Court is to grant or refuse relief. When parties approach the appellate Court it maintains, adds to or substracts from the relief granted. It may partly add and partly substract. Does the decree of the appellate Court comprise only the part that is added to or substracted or does it comprise the whole relief that remains granted to any party after the appeal has been decided I will make my meaning clear by an example. A files a suit for Rs. 20,000. The trial Court grants a decree for Rs. 15,000. The plaintiff appeals with respect to the remaining Rs. 5,000. Appellate Court grants this Rs. 5,000. Is‑the decree of the appellate Court a decree for Rs. 20,000 or can it be said that it is a decree for Rs. 5,000 and for the remaining Rs. 15,000 there is a decree by the trial Court Suppose now that the plaintiffs appeal is dismissed. Is the decree of the appellate Court merely a dismissal of the claim for Rs. 5,000 or is the decree for Rs. 15,000 a decree of the appellate Court

A consideration of the provisions of the Code of Civil Procedure as well as of decided cases leaves no doubt that once there has been an appeal the decree of the appellate Court comprises the whole decree that remains in the suit, even though the appeal was directed against a part only of the decree. Unfortunately, this aspect of the matter has note been considered at all in cases which deal with the grant of leave to appeal in cross‑appeals. However, the question of the nature of an appellate decree and the effect of an' appeal on the trial Court's decree has been considered by Court in connection with other matters of which two are prominent. The first is limitation for execution of decrees and the second is jurisdiction to entertain applications for amendment of decrees. In both kinds of cases, it has been held that once an appeal has been filed the only decree that remains in the suit is the decree of the appellate Court: It matters not that the appeal relates only to a part of the decree of the trial Court. I will refer first to the Full Bench case of the Madras High Court in Kristnama Chariar v. Mangammal (I L R 26 Mad. 91). In that case an appeal had been filed impeaching a part of the decree only. The decree‑holder applied for execution of the part against which there had been no appeal. The application for execution was within time from the date of the decision of the appeal but was time barred if the terminus a quo was the date of the trial Court's decree. Article 179 (now 182) provided that in cases where "there has been an appeal", time ran from the date of the decision of the appeal. It was urged on behalf of the judgment‑debtor that the words "where there has been appeal" referred to art appeal against the part of the decree sought to be executed. This contention was rejected by all the three Judges of the Full Bench. Bhashyam Ayyangar, J. thus explained the reasons underlying this provision :‑

"When an appeal is preferred from a decree of a ‑Court of first instance, the suit is continued in the Court of Appeal and re‑heard either in whole or in part, according as the whole suit is litigated again in the Court of Appeal or only a part of it. The final decree in the appeal will thus be the final decree in the suit, whether that be one confirming, varying or reversing the decree of the Court of first instance. The mere fact that a mater is litigated both in the Court of first instance and again, though only in part, in the Court of Appeal, cannot convert or split the suit into two and there can be only one final decree in that suit, viz., the decree of the Court of Appeal. There cannot be two final decrees in such a suit, one by the, Court of first instance and the other by the Court of Appeal. Section 577, C. P. C., therefore provides that the appellate judgment may ‑be for confirming, varying or reversing the decree appealed against. If the appeal be against a portion of the decree only and the appeal be dismissed the decree will be one confirming as a whole the decree appealed against, including the portion not appealed against, and the confirmation is not limited the portion appealed against. If such appeal be allowed, the decree appealed against will not be reversed by the appellate decree but only varied or modified and confirmed at to the jest, i.e., the portion not appealed against. The portion appealed against and litigated in the Court of Appeal is varied or confirmed according as the objection taken, in the Court of Appeal, to such part of the decree prevails or fails. The rest of the decree is confirmed because no objection is raised thereto by the party concerned and 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.

When an appeal is preferred, the Court of Appeal is really seized of the whole suit though the relief given by it will be limited to the portion of the decree appealed against 'or objected to under section 561, C. P. C."

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.

‑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.

.‑I agree with Kaikaus, J.

K. M. A.

Reference answered.

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