Judgment

GAJENDRAGADKAR, J. : If the appellant decree passed by the High Court makes a variation in the decision of the trial court under appeal in favour of a party who intends to prefer an appeal against the said appellant decree, can the said decree be said to affirm the decision of the trial court or not under Art 133 (1) of the Constitution? That is the short question which arises for our decision in the present appeal.

2. The appeallant Tirumalachetti Rajaram filed a suit in forma pauperis in the Court of the Subordinate Judge, Chittoor, for his half share in the properties which once belonged to the joint family consisting of himself and his father and to this suit he impleaded his father and several alieness from him. His case was that the alienations effected by his father as well as the sales held in execution proceedings against his father were not binding on him and so his share in the properties covered by the said alienations was not affected by them. It is on this basis that he claimed his half share in all the said properties. The trial court rejected his contention that the alienations did not bind him, upheld all the alienations and so dismissed his suit. On appeal the High Court of Madras reversed the trial. courts decree in respect of alienations which covered items 2, 10 and 14 in Schedule A as well as item 5 in Schedule B. It held that the alienations in respect of these items did not bind the appellant s share and so a preliminary decree for partition was passed in his favour in respect of the said items. The rest of the decree passed by the trial court was confirmed. The appellant then applied to the High Court for a certificate under Art. 133 (1) of the Constitution. This application was rejected on the ground that the decree sought to be appealed from was one of affirmance and there was no substantial question of law raised by the proposed appeal. In coming to this conclusion the High Court followed an earlier Full Bench decision in Chittam Subba Rao v. Chelamayya, ILR (1953) Mad 1 : The appellant then applied for and obtained special leave from this Court, and on his behalf it is urged that the view taken by the Madras High Court in the case of Chittam Subha Rao. ILR (1953) Mad 1 : proceeds on a misconstruction of the relevant clause in Art. 133 (1). That is how the short question which falls to be considered in the present appeal relates to the construction of the said relevant clause in Art. 133 (1). It is common ground that the test of valuation prescribed by Act 133 (1) (a) is satisfied in this case.

3. Article 133 (1) which corresponds to S. 110 of the Code of Civil Procedure reads thus :

"133 - 1. An appeal shall lie to the SC from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies -

(a) that the amount or value of the subject matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or

(b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or

(c) that the case is a fit one for appeal to the SC; and, where the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred to in sub-clause (c). if the High Court further certifies that the appeal involves some substantial question of law."

In the present case we are concerned with the clause "where the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred to in sub-clause (c)". It is common ground that if the appellate decree of the High Court makes a variation in the decision of the trial court against the intending appellant the appellate decree is not a decree of affirmance but varia