TIRUMALACHETTI RAJARAM versus TIRUMALACHETTI RADHAKRISHNAYYA CHETTY

Citation: [1962] 2 S.C.R. 452 · Decided: 27-04-1961 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Appeal(s) allowed

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Judgment (excerpt)

Rana Sheo 
Ambar Singh 
v. 
Allahabad Bank 
Ltd,, Allahabad 
Wanchoo ]. 
z96I 
April 27. 
452 
SUPREME COURT REPORTS 
[1962) 
This brings us to the question of limitation. Mr. 
Aggarwala conceded that if the appellant succeeds on 
the first' point it would not be necessary for us to con-
sider the question of limitation. Therefore, as the 
appellant. succeeds on the first point we need not 
consider whether the application for execution by sale 
of bhumidari rights created under s. 18 is barred by 
limitation. 
We therefore allow the appeal and direct that the 
execution of the decree by the respondent will not be 
levied against the bhumidari rights created in favour 
of the appellant under s. 18 of the Act. The appellant 
will get his costs of this court and of the High Court. 
Costs of the execution court will be at the discretion of 
that Court. 
Appeal allowed. 
TIRUMALACHETTI RAJARAM 
v. 
TIRUMALACHETTI RADHAKRISHNAYYA 
CH ETTY 
(P. B. GAJENDRAGADKAR, A. K. SARKAR, 
K. N. WANCHOO, K. C. DAS GUPTA and 
N. RAJAGOPALA AYYANGAR, JJ.) 
Supreme Court, Appellate Jurisdiction of-Appeal from decree 
affirming the decision of the court below-Decree of aj/irmance, 
Meaning of-Test-Constitution of India, Art. 133(1). 
The appellant brought a suit for the recovery of his moiety 
share of the joint family properties against his father and alie-
nees from the latter and his case was that the alienations made 
by the father were not binding on his share of the properties. 
The trial court dismissed the suit but the High Court on appeal 
reversed the decision of the trial court in respect of some of the 
properties, passed a preliminary decree for partition of those 
properties and confirmed the rest of the decree of the trial court. 
The appellant applied for a certificate under Art. 133(1) of the 
Constitution but the High Court rejected the same holding that 
the decree was one of affirmance and involved no substantial 
2 S.C.R. SUPREME COURT REPORTS 
453 
question of Jaw, following a decision of the Full Bench of that 
1961 
Court in Chittam Subba Rao v. Vela Mankanni Chellamayya. The 
case admittedly satisfied the test of valuation prescribed by 
Tirumalach•lli 
Art. l33(1)(a). 
Raja.am 
Held, that in construing the relevant clause of Art. 133(1) 
. 
v. 
. 
of the Constitution, which gives a constitutional right to the Tirumalachetto 
litigant to appeal to this Court, it would be inappropriate to Radhakmhnayya 
adopt a technical or pendantic approach an<!! the clause must be 
Chetty 
read as a whole and its material words given their plain gramma-
tical meaning. 
So construed, the correct test to determine whether an 
appellate decree affirmed the decision of the court below would 
be to compare the appellate decree, taken in its entirety, with 
the. decision of the trial court taken as a whole. If on such com-
parison it was found to do so, it was a decree of affirmance; but 
if it made a variation, whether for or against the appellant, it 
would be a decree of variation, the extent of the variation being 
wholly immaterial. 
Chittam Subba Rao v. Vela Mankanni Chelamayya, I.L.R. 
[1953] Mad. l, disapproved. 
The words "appealed from" in the last part of Art. 133(1) 
are not words of limitation, and they do not refer to a part of 
the decree, that may be under appeal, but simply describe the 
decree viewed as a whole. So also the word "decision" therein 
means the decision of the trial court as a whole and not the 
decision on any point falling for determination. 
Rajah Tasadduq Rasul Khan v. Manik Chand, (1902) L.R. 30 
I.A. 35, referred to. 
Dhirendra Nath Sarkar v. Nischintapore Company, [1916] 36 
LC. 398, held inapplicable. 
The test in respect of value laid down by Art. r33(1)(a) is an 
independent condition that cannot control the meaning of the 
word 'decree' in the last part of Art. 133(1), which provides for 
another additional and independent condition. 
Raja Sree Nath Roy Bahadur v. The Secretary of State for India 
in Council, (r904) 8 C.W.N. 294, Annapurnabai v. Ruprao, (1924) 
L.R. 51 I.A. 319 and Narendra Lal Das Chaudhurv v. Gopendra 
Lal Das Chaudhury, A.I.R. 1927 Cal. 543, considered. 
Case-law reviewed. 
While any variation of the order as to costs, which is in the 
discretion of the Court under s. 35 of the Code of Civil Proce-
dure, cannot change the character of the appellate decree which 
is otherwise one of affirmance, variation of the order as to inte-
rest under s. 34 of the Code must affect its 

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