Interest accruing subsequent to the institution of the suit is discretionary to the Court and not part of the subject-matter in dispute on appeal to His Majesty in Council.

Curgenven, J.

1. This is an application under Section 110 of the Code of Civil Procedure for permission to appeal to His Majesty in Council. The suit was brought on behalf of minor plaintiffs against the defendant, as executor under their fathers will, for an account of his management of the estate. The valuation of the relief claimed was over Rs. 10,000, so that the case fulfils the first condition prescribed by the section, that "the amount or value of the subject-matter of the suit in the Court of first instance must be Rs. 10,000 or upwards". We are asked to hold that the second condition is also satisfied, that "the amount or value of the subject-matter in dispute on appeal to His Majesty in Council" is the same sum or upwards.

2. The decision of this point depends upon whether the plaintiffs, who are the petitioners, are entitled to include in their reckoning interest accruing subsequent to suit. The Court of first instance gave a decree which, after correction of an error, amounted to Rs. 3,859-14-10. This sum was the subject-matter of the defendants appeal to this Court, and the plaintiffs presented a memorandum of objections claiming, in addition to it, a sum disallowed by the trial Court which, after deducting a certain amount given up, stood at Rs. 2,118-0-8. The result of this Courts decree was that the whole of the plaintiffs claim was disallowed, and they were found liable to pay the defend ant Rs. 173-7-11. The plaintiffs now desire to appeal to the Privy Council in respect of the three sums above specified, totalling Rs. 6,151-7-5, and to the amounts of the two former they claim to add a sum of Rs. 5,072-10-10, being interest from 31st January, 1918, when payment, it is said, was due from the defendant, up to 19th April, 1932, the dale of this Courts decree. If this course is permitted, the value of the appeal will be well above Rs. 10,000, vis., Rs, 11,224-2-3. If interest accruing subsequent to the institution of the suit is to be excluded, the value will be below the appealable minimum.

3. The learned advocate for the petitioners puts his case in this way: if the plaintiffs had fully succeeded both in the appeal and in the memorandum of objections before this Court, they would have obtained a decree which, with interest at 6 per cent, up to the date of that decree, would have exceeded Rs. 10,000; and from this decree the defendant could have appealed to the Privy Council. It must follow that the plaintiffs, who have been denied the whole of this sum, have equafly a right of appeal, since it would be inequitable and anomalous to withhold from the one a right which would, in the converse case, have been conceded to the other.

4. It is no doubt true that the value of a defendants appeal is the amount of the decree of this Court, and that where interest up to its date is included the appellant is entitled to a certificate if the whole sum thus composed reaches the minimum figure of ten thousand rupees. That was decided by the Privy Council in Gooroopersad Khoond v. Juggutchunder (1860) 8 M.I.A. 166, a case followed by their Lordships in Bank of New South Wales v. Owston (1879) 4 A.C. 270. But it does not necessarily follow that the converse proposition, as it is sought to apply it to a plaintiffs appeal, is true. The only case to which our attention has been drawn as directly deciding this point against a plaintiff is Ram Kumar v. Muhammad Yakub I.L.R. (1920) All. 445. Apparently the decision in Moores Indian Appeals was not cited before that Bench, but only the New South Wales case (1879) 4 A.C. 270, which the learned Judges distinguished on the ground that whereas the law of New South Wales gives a decree-holder a statutory right to interest, in this country the grant of it is discretionary to the Court. Such a ground for distinction would not, of course, apply to the case in Moores Indian Appeals, which proceeded upon no more than the fact that the decree comprised interest, and not upon any question of the