Valuation of the subject matter of suit and appeal.

This is an application under Article 133, of the Constitution of India for leave to appeal to the Supreme Court against the decree and judgment of this Court dated 25th January, 1950, in Appeal No. 377 of 1948.

The trustee of Sri Chenna Kesavaswami Temple instituted O.S.No. 73 of 1946 on the file of the Court of the Subordinate Judge of Ellore, against several defendants for recovery of possession of certain properties and for mesne profits. The suit comprised of various items; but before the trial, the plaintiff compromised with some of the defendants and the suit was disposed on the merits only against defendants 1 to 6 and 17 to 28. Their claim related to items 1 and 7 of the plaint schedule. The case of the plaintiff was that the lands in question belong to the deity and the mortgages effected by the archakas were invalid and therefore the plaintiff was entitled to recover possession of the same with mesne profits. The 5th defendant who is the son of the mortgagee under Exhibit B-1, one of the impugned mortgages, raised the plea that he acquired a right by prescription, the mortgagee’s right. The Subordinate Judge decreed the suit in respect of both the items. In appeal, this Court confirmed the decree of the Subordinate Judge in regard to item 7 but in respect of item 1 held that the 5th defendant acquired a right to the mortgage by prescription. In the result, we directed the lower Court to give a decree for redemption after determining the sums due to the mortgagee under Exhibit B-1. The effect of our judgment is that the plaintiff obtained a decree for redemption in respect of item 1. His title to that item was not negatived and his right to possession was conceded, and he was held entitled to recover possession after discharging the mortgage. The plaintiff has filed this application for leave to appeal to the Supreme Court.

The petitioner argues that he is entitled to leave under Article 133(1) of the Constitution. This Article runs as follows:

“(1) An appeal shall lie to the Supreme Court 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 Supreme Court.”

We have held in C.M.P.No. 6638 of 1950 that an appeal will lie to the Supreme Court if the value of the subject-matter of the suit and that of the appeal was Rs.10,000 in regard to judgments delivered prior to the date when the Constitution came into force. The petitioner therefore would be entitled to prefer an appeal to the Supreme Court under Article 133( 1) (a) if the subject-matter of the suit and that in dispute on appeal is not less than Rs. 10,000. From the facts stated above, it is clear that though the suit was filed based on title for possession of item 1, in view of our judgment, the subject-matter of the appeal is confined only to the mortgage interest claimed by the fifth defendant. If so, the value of the subject-matter of the dispute in appeal would only be the mortgage amount which is admittedly below Rs.10,000. In a suit for redemption it is not correct to state that the property in dispute is the security given for the loan. The subject-matter is the loan for which the security was given. That the value of the subject-matter of a suit is the mortgage money and not the property given as security is also supported by the judgment of the Judicial Committee in Mirza Abid Hussain Khan v. Ahmad Hussain1. In that case, the suit was filed to enforce an annuity of Rs.125 per annum. The Privy Council held that the 110th section of