Ranawat, J.—On an application filed by the defendant under Art. 135 of the Constitution of India for leave to appeal to the Supreme Court an order was made by a Division Bench of this court, to which I was a party, on the 27th of November 1950, by which it was held that the defendant had a right to go in appeal to the Supreme Court under Art.133 of the Constitution of India, provided he can show that the value of detriment, which he would suffer on account of the execution of the decree is Rs. 20,000 -or upwards, which, would be the value of the entire property, as it now stands, including the additions made by the defendant after the filing of the suit. As the property had not been valued, a direction was issued to the District Judge, Jaipur City, to hold an enquiry in the matter and to submit his finding to this court. In pursuance of that order, the District Judge, Jaipur City, held an enquiry and he has submitted the papers back to this court along with his finding that the value of the entire property is more than Rs. 20,000/-. An objection petition has been filed on behalf of the plaintiff-decree-holder that the finding of the District Judge is erroneous and that in calculating the value of detriment to the defendant on account of the execution of the decree in question, the value of the property, which was the subject-matter of the suit, should not have been included.

2. As regards the point, whether under para 2 of sec. no C.P.C. the value of the subject-matter of the suit should be taken into account in calculating the value of the loss or detriment which the defendant would suffer on account of the execution of this decree, there appears a finding of this court in the order dated the 27th November 1950, but a perusal of that order shows that this point was not specifically agitated by the parties before the court at that time and consequently this point has not been discussed in that order. The parties were therefore allowed to argue this point again.

3. The provisions of Art. 133 of the Constitution of India are exactly the same as those of secs. 109 and no of the Civil Procedure Code.

4. The argument of the learned counsel of the defendant is that the term "property" used in the second paragraph of sec. 110 C.P.C. stands for some property other than the property which is the subject-matter of the suit. According to him, the value of the property which is the subject-matter of the suit should be altogether ignored and the value of property relating to which some claim or question is directly or indirectly involed in the decree or final order must alone be of the value of Rs. 20,000/- or more in order to enable a party to go in appeal to the Supreme Court. The counsel on the opposite side supports the opinion expressed by this court in the remand order referred to above.

5. The law on the subject is contained in the observations of Wallis C., J. and Srinivasa Aiyangar, J. in Subramania Aiyar vs. Sellammal (A.I.R. 1916 Mad. 985), which are as follows : —

Per Wallis CJ.

It is of course necessary to read the whole section together and to give effect to every part of it; and when doing so it becomes necessary in my opinion, in order to give effect to the new provision in the first paragraph, to put a restrictive construction on the general words of the second paragraph which are reproduced from clause 39 of the Letters Patent, and to read them in their collocation as applying only to cases which involve some claim or question to or respecting property additional to the actual subject-matter in dispute in the appeal and to be taken into account therewith in making up the appealable value".

Per Srinivasa Aiyangar, J.

"If the decision beyond awarding relief in respect of the particular subject-matter of the suit affects rights in other properties, clause 2 would apply; also if the matter in dispute is one which is incapable of valuation as in the case of easements, clause 2 may apply".

6. The principles laid down in the decision rep

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