GANSU RAM Vs. MTPARVATI KUER

JUDGEMENT

(1.) THIS is a miscellaneous second appeal by the judgment-debtors and comes before us after a remand for an additional finding of fact, this finding having now been received. The respondent obtained a decree for Rs. 963.12-15 dams, against the appellants. In execution of that decree, the property of the appellants was sold on 15 June 1936, for Rs. 300 and purchased by the decree-holder. Subsequently, in 1937, the amount of the decree was reduced by the High Court in second appeal to the sum of Rs. 507-14-6.

(2.) THE judgment-debtors thereupon applied before the Munsif to get the sale set aside upon payment of the entire decretal amount of Rs. 507-14-6 and to get back their property, by way of restitution under Section 144, Civil P.C. THE learned Munsif rejected this application on the ground that the sale proceeds (RS. 300) were less than the final decretal amount; so the property would have had to be sold in any case, irrespective of the modification of the decree. THE lower appellate Court took the same view, and the case then came to the High Court in second appeal. This Court thought it advisable to have a clear finding of fact as to whether, if the decretal amount at the time of the sale had been only Rs. 507-14- 6, the appellants would have been in a position to get the sale set aside by paying that reduced decretal amount within 30 days of the sale. 4. THE case went back to the learned District Judge, who sent it to the Munsif, who gave both parties an opportunity of adducing evidence on this point. After considering that evidence the learned District Judge has forwarded his finding. He says that he has no hesitation in finding it as a fact that the appellants were not in a position to pay up the whole decretal amount and thereby avoid the sale of their property, even if the decretal amount had been reduced to Rs. 507-14-5 only before the sale was held or within 30 days from the date of sale. 5. That finding of fact is binding upon us in second appeal. It has been sought to challenge it on the ground that the learned District Judge misdirected himself. One of the circumstances, upon which he based his finding, (though, be it noted, it was by no means the only circumstance) was that it was alleged that a mortgage bond which had been executed in favour of the appellants by one Bandhu Mahto had been redeemed on 14 February 1936, on payment of Rs. 1695. THE learned Judge found that there was an endorsement of payment of this sum on the back of the bond dated 14 February 1936. 6. THE appellants case, however, was that the mortgagor had paid this amount by giving an ijara of the same property to one Parbhu Chand, the brother-in-law of appellant 2. THE learned District Judge commented adversely on the evidence of this Parbhu Chand, because, though he was a substantial money-lender, he did not produce his account books in support of this transaction. It is argued for the appellants that the learned District Judge was wrong in drawing an unfavourable inference, because Parbhu Chand was not called upon to produce these account books. THE contention does not appear to me to be a sound one. 7. It was for the appellants to prove their case by the best evidence, and when they examined Parbhu Chand to support their case, it was, in my view, for them to see that their witness produced the best evidence available to support the contentions put forward. It was therefore the appellants who should have summoned this witness with his account books, and the learned Judge, in my view, was quite right in drawing an unfavourable inference, 8. Apart from that, the learned Judge, as I have said, considered a quantity of other evidence. He noted the fact that the ijara was in the name of Parbhu Chand, a brother-in-law of appellant 2, and he came to the conclusion that this was not really a cash transaction, but the substitution of a usufructuary mortgage for the original mortgage executed for the appellants in the name of this Parbhu Chand. THE learned Judge noted also that direct evidence on this point was given by a witness on behalf of the respondent, and the Judge considered that the evidence of this witness was worthy of credit. He also took into account the fact that though the appellants could have secured under the orders of the Court a stay of the sale by deposit of half the original decretal amount, nevertheless they never put up that sum. 9. THE finding of the learned District Judge cannot be called an unreasonable one and is not one which can be successfully challenged in second appeal. It must be taken then that the appellants were not in a position to pay even the reduced decretal amount at the time of the sale. 10. This being so, the case was in essentials similar to Doyal Sarkar V/s. Tari Deshi . In that case Rankin C.J. held that the judgment-debtor in a case of this kind could not recover the properties except upon showing that the sale was in substance and truth a consequence of the error in the original decree. For the appellants, it is argued that that was a case where the decree had only been slightly modified, and that where the decree has been substantially altered, it must be taken that the original decree ceased to exist. 11. THE principle to be followed therefore should be that laid down in Syed Nathadu Sahib V/s. Nallu (04) 27 Mad. 98. This ruling of the Madras High Court was however subsequently considered by the Madras High Court itself in Sundaram Reddi V/s. Raghava Reddi A.I.R. 1922 Mad. 96 where it was observed that under the old Code the Court was not limited, in granting such restitution as it thought fit, to place the party in the same position as he would have occupied but for the variation or reversal of the original decree. Section 144 of the present Code gave a much more restricted power, and the decision in Syed Nathadu Sahib V/s. Nallu (04) 27 Mad. 98 might be distinguished on the ground that it related to Section 883 of the old Code. 12. THEir Lordships went on to lay down a criterion precisely similar to that adopted in Doyal Sarkar V/s. Tari Deshi , namely, that the prejudice to be removed by restitution must be result of the erroneous terms of the original decree. Once therefore it is held that the erroneous character of the original decree made no difference to what took place, then, manifestly, upon this criterion, there is no case for restitution, and whether the modification of the decree is slight or substantial will be irrelevant. 13. It is quite clear having regard to the finding of fact now received, that in the present case the position was not altered in any way by the modification of the decree, and. as the judgment-debtors could not have paid up even the reduced decretal amount and the sum realised by the sale was less than the reduced decretal amount, the situation would not have been altered in any way, had the decree been modified before instead of after the sale. This is not a case where there was any prejudice owing to the erroneous character of the original decree, and it is not therefore a case to which Section 144, Civil P.C., is applicable. 14. I would dismiss this appeal with costs throughout. Fazl Ali J. I agree.