SABITRI THAKURAIN Vs. SURAJ MOHAN THAKUR

JUDGEMENT

(1.) This is an application for leave to appeal be His Majesty in Council in a case which occupied an unusual period of time in this Court. The subject matter of the appeal was a decision of the lower Court that a compromise between the appellant and the respondent should be recorded. The decision involved a sum exceeding Rs. 10,000. The first point for consideration is as to whether or not the judgment of this Court was one of affirmance. Sir Sultan Ahmad in support of this application contends that it is not a judgment of affirmance within the meaning of Section 110, Civil P.C. The decree of the lower Court was that the compromise had in fact been effected, that it was of a legal character and that there was no legal objections to its being recorded. This Court arrived at the same conclusions.

(2.) The Subordinate Judge in the course of his judgment expressed his opinion upon a term of the compromise by which the appellant abandoned a claim by her to a shebaitship and certain debuttar property and said that the compromise did not affect such debuttar property. Against this expression of opinion the respondents filed a cross-objection. The learned Judges of this Court held that the expression of such opinion might prejudice the claims of the parties to such debuttar property. They disagreed with the opinion of the Subordinate Judge thereon and said that in their view the whole estate including the debuttar property was affected by the compromise. They allowed the cross-objection and set aside the observations of the Subordinate Judge on this point, but they affirmed the decree that the compromise be recorded.

(3.) Now an appeal lies from the decree and not from the judgment which is only the expression of the reason of the Court for making that decree. It is open to an appellate Court to affirm a decree on its own reasoning and in disagreement with the reasoning of the trial Court. In my opinion the so called cross-objection by the respondent was unnecessary and was not in the nature of a cross-appeal. I venture to cite an illustration from my own experience in England though the reports are not available in India. In British United Shoe Machinery Co. V/s. Simon Collier Ltd., which is found in the English Reports of Patent Cases the plaintiffs sued for damages and an injunction to restrain infringement of their Letters Patent. The trial Court held that the patent was invalid, but that if it had not been invalid the defendants machine would have infringed, and therefore dismissed the suit.