A judgment of affirmance is one in which the appellate court upholds the decision of the trial court in its entirety. However, if the appellate court modifies the trial court's decree, even to the benefit of the appellant, the judgment is not a judgment of affirmance.

( 1 ) THIS is an application under Article 133 (1) of the Constitution of India for leave to appeal to the Supreme Court. The applicant was defendant No. 1 in a partition suit.

( 2 ) IT is stated that the value of the properties, which were sought to be partitioned, was Rs. 59607/ -. There is no dispute that the applicant's share is one-half. That being so, the value of the subject-matter in dispute in the court of first instance and in the proposed appeal is well over Rs. 20,000/-, even according to the principle that the valuation of appeals arising out of suits for partition is the valuation of the appellant's share.

( 3 ) THE next question is whether the judgment sought to be appealed from is one of affirmance. It was on that point that the entire argument before us was concentrated.

( 4 ) AS I have stated already, the petitioner before us was one of the defendants in the suit and the defence put forward by him was that the properties mentioned in the plaint were not liable to be partitioned, inasmuch as they were his self-acquired properties and that, necessarily, he was not liable to render any account to anybody. His claim that the properties were not liable to be partitioned was not accepted by the trial Court, which made a decree both for partition and accounts. The portion of the decree, which was concerned with an order for accounts, was expressed in the following language:"that the defendant No. 1 is also directed to amicably render to the plaintiff's accounts in respect of the Ejmali properties mentioned in schedules 'ka', 'kha' and 'ga' for the period from Chaitra, 1328 B. S. (March-April, 1920), till the date of the institution of the present suit on the footing that be was the Karta within five months from elate failing which a commissioner will be appointed on plaintiffs' application for the purpose and the cost thereof will be realised from defendant No. 1 in execution. That the defendant No. 1 will be liable to account for what he got in and not for what he ought to have got in with greater skill and diligence. "

( 5 ) FROM that decree defendant No. 1 appealed. The appeal failed on all points, but with regard to the decree for accounts, a slight change was made. What the appellate decree said was as follows:"defendant No. 1 is directed to amicably render to the plaintiff's accounts in respect of ejmali properties mentioned in schedules Ka, Kha and Ga to the date of the institution of the present suit only for the purpose of determining what assets were available for partition on the date of the suit. A commissioner will be appointed on the plaintiffs' application for the purpose, and the cost thereof will be realised from the defendant No. 1 in execution. "

( 6 ) IT was contended by Mr. Sen Gupta that the judgment of this Court did not affirm the decision of the trial Court inasmuch as it clearly varied the decree made by the trial Court as regards the rendition of accounts. The contention urged was that if one went by the strict language of the concluding paragraph of Article 133 (1), it would be unarguable that the judgment was a judgment of affirmance. But, so it was contended further, even if one took into account the refinements which had been introduced in some of the decisions of this Court, refinements which were not mutually very consistent, the judgment would still not be found to be a judgment of affirmance.

( 7 ) ON behalf of the plaintiffs it was, on the other hand, contended by Mr. Sinha that the only variation which had been made by the appellate Court was a variation in the petitioner's favour and that, according to the decisions of this Court, the petitioner could not utilise that variation for the purpose of making out that the judgment was not one of affirmance and, on that basis, reopen other questions which stood concluded by the concurrent decisions of two Courts.

( 8 ) IT will appear from an examination of the cases that in considering the question as to whether