Article 133 appellate decree rule: any variation by the High Court prevents pure affirmance and supports appeal as of right.

For Article 133, a High Court decree must be tested as a whole against the decree of the court below as a whole, not only against the portion the appellant seeks to challenge. If the High Court varies any part of the trial court decree, the appellate decree is not one of pure affirmance even where other issues remain undisturbed. The distinction between an appeal and a cross-objection was treated as immaterial where only one composite decree was drawn up. On that basis, the applicant was held to have a right of appeal as of right, and leave to appeal to the Supreme Court was granted.

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Issues: Whether, for the purpose of Article 133 of the Constitution of India, a decree of the High Court that affirms the trial court on some matters and varies it on others is to be treated as one of affirmance or variance, and whether the right of appeal as of right depends on the subject-matter of the proposed appeal or on the decree as a whole.

Analysis: The expression "judgment, decree or final order appealed from" was held to refer to the decree under challenge as a whole, not merely to the particular portion the appellant proposes to contest. The corresponding decision of the court below likewise has to be viewed as a whole. Where the High Court varies the trial court decree on any part of the controversy, the appellate decree is not one of affirmance merely because some other issues have been left undisturbed. The distinction between an appeal and a cross-objection was treated as immaterial where only one composite decree is drawn up, whereas separate appeals may stand on a different footing. The earlier authorities were examined and the rule accepted was that a variance in any part of the decree prevents the decree from being one of pure affirmance for Article 133 purposes.

Conclusion: The applicant had a right of appeal as of right because the High Court decree varied the trial court decree and the valuation exceeded the statutory minimum.

Final Conclusion: The application for amendment was allowed and leave to appeal to the Supreme Court was granted, the case being certified as fit for appeal under Article 133.

Ratio Decidendi: For Article 133, the appellate decree must be tested as a whole against the decision of the court below as a whole, and if the High Court varies any part of that decision, the decree is not one of affirmance.

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