SRI RAJAH SATRUCHERLA SIVASKANDARAJU BAHADUR GARU Vs. SRI NARASIMHA PATTAMANI ALIAS PADMAVATI PATTAMANI DEVI GARU

JUDGEMENT

(1.) The first question with which" I propose to deal is, whether the judgment-debtors have sustained substantial injury within the meaning of Order 21, Rule 90. If this point is answered in the negative, the consideration of the other questions raised becomes unnecessary. In. regard to the injury alleged, there is one puzzling feature in the case, to which I shall presently refer. But, apart from that, we have to decide whether the Lower Court's finding that no damage has been sustained is correct or not. The sale commenced by order of Court on the 27 June, 1928: leave to bid was granted to the decree-holders on the 12 July and on the last mentioned date an order was made directing that the sale was to proceed from day to day to the end of July. On the 17 July the Zamindar of Andhra bid Rs. 2,50,000 for each of the two lots. It may be mentioned that the Zamindar is a near relation of one of the judgment-debtors. On the 31 July there was no further bid made until the decree-holders offered for each lot a sum of Rs. 1,000 more. At 5 p.m. on the 31 July the sale was, concluded and the decree-holders were declared the purchasers, their bid for Rs. 2,51,000 for each of the two lots having been accepted by the Court.

(2.) The sale proclamation was settled on the 17 April, 1928, It may be mentioned that this estate had been for several years in the possession of Receivers appointed by the Court. At the time when the learned Judge settled the proclamation, he obtained the necessary information from the Receiver then in charge and arrived at the reserve price. The income was about Rs. 22,000 a year, and the Judge fixed the value of the property as being twenty times the annual income. On that calculation, the reserve price was fixed at Rs. 2,25,969 for one lot and Rs. 2,12,888 for the other. At the sale by auction, the price fetched was slightly higher than these sums. Not only was the sale advertised in the usual manner, but wide publicity was given by announcements in various leading newspapers. We may adopt another method for testing whether the amounts mentioned in the proclamation as the reserve price were an under-estimate. One of the mortgages in favour of the plaintiff was granted in 1906. The instrument of mortgage describes the property in great detail; the name of each village is shown there and the total income as stated in the deed was Rs. 29,000, less peishcush Rs. 9,000. In other words, the net income of the properties as stated in the deed was Rs. 20,000. Adopting this test, it cannot be said that there has been inadequacy in the sale price realised at the auction.

(3.) But there remains the evidence of P. W. 5, on which very rightly Mr. Ramanatha Shenai, the" learned Counsel for the appellants, has laid much stress. P. W. 5 is the standing vakil of the Andhra Zamindar. He deposes that in his presence the Zamindar proposed to the Dewan of Jeypore offering to purchase one of the two lots for 4 1/2 lakhs, but the Dewan was unwilling to part with it for less than 5 lakhs. This Witness's statement is direct and unequivocal. If his evidence was untrue, why was not the Dewan of Jeypore called to contradict him ? Mr. Ramanatha Shenai says that, in the absence of evidence to the contrary, we must accept the evidence of P. W. 5. The learned Judge is alive to this difficulty, but gets over it by finding definitely that this witness's evidence is false. I am afraid I must most strongly differ from this view. On what material does the learned Judge hold that this witness cannot be believed? How is he justified in coming to the conclusion that his evidence is perjured? Where there is nothing to show that the statement is inherently improbable, it would be wrong to hold that a statement given on oath is false, when not only it remains uncontradicted but when the opposite party, who challenges it, deliberately abstains from adducing evidence to the contrary. In this case, whatever my conclusion may be, I am definitely of the opinion that the Judge's finding that P. W. 5 has spoken a falsehood cannot and ought not to be supported. But the question still remains, does the evidence of this witness go far enough to show that there was an undervaluation? If his evidence be carefully read, the point emerges that what was, then contemplated was not a direct purchase by the Andhra Zamindar. The proposal seems to be that the purchase was to be made at the auction by the Dewan for the decree-holders and that he was in his turn to sell one of the lots to the Andhra Zamindar. Thus the sale that was contemplated was to be contingent upon certain events, and, as the evidence shows, it was not to be even for cash. The Andhra Zamindar, connected as he was with the judgment-debtors, would be prepared to pay a price, which the property would not fetch in the open market; |o him it had a value which it might not have to others. The Dewan of Jeypore was well aware of that fact, and might well have tried to make what profit he could for the mortgagee. We cannot also overlook the fact that the Andhra Zamindar was not in a position to then and there complete the purchase. It would not be very safe to act upon the statement of the Dewan of Jeypore as representing his. considered opinion as to the price of the property. Although the appellants learned Counsel was entitled to comment and comment strongly on the fact that the Dewan of Jeypore did not venture to go into the witness-box and contradict P. W. 5, I am not prepared to inter from this omission, that the statement as to the price in the proclamation was an under-estimate.