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Prabirendra Mohan Vs. Berhampore Bank Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberApplns. for leave to Appeals to Supreme Court Nos. 32 to 34 of 1952
Judge
Reported inAIR1954Cal289,57CWN933
ActsConstitution of India - Articles 133 and 135; ;Code of Civil Procedure (CPC) , 1908 - Sections 34 and 110 - Order 45, Rule 4
AppellantPrabirendra Mohan
RespondentBerhampore Bank Ltd. and ors.
Appellant AdvocateJitendre Kumar Sen Gupta and ;Manindra Nath Ghose, Advs. to the Supreme Court
Respondent AdvocateRajendra Bhusan Bakshi and ;Amarendra Narayan Bagchi, Advs., ;Kumud Bandhu Bagchi, Adv. for Respondent No. 1 to the Supreme Court.
DispositionApplication dismissed
Cases ReferredBasanta Kumar v. Secy. of State
Excerpt:
- chakravartti, c.j.1. these are three applications for leave to appeal to the supreme court from a common judgment and three decrees passed by this court, affirming thereby a common judgment and three decrees passed by a learned subordinate judge in three suits brought for setting aside the sales of three patnis. the courts have concurrently decreed the suits and defendant no. 2, the zamindar at whose instance the patni sales were held, wants our leave to appeal to the supreme court.2. the plaintiffs. in the suits were the holders of the patnis sold. it was not disputed that the arrears for which the patnis had been brought to sale were in fact due, but the plaintiffs' case was that the sales had been irregular in that requisite notices had not been properly exhibited at the zamindar's.....
Judgment:

Chakravartti, C.J.

1. These are three applications for leave to appeal to the Supreme Court from a common judgment and three decrees passed by this Court, affirming thereby a common judgment and three decrees passed by a learned Subordinate Judge in three suits brought for setting aside the sales of three patnis. The Courts have concurrently decreed the suits and defendant No. 2, the zamindar at whose instance the patni sales were held, wants our leave to appeal to the Supreme Court.

2. The plaintiffs. in the suits were the holders of the patnis sold. It was not disputed that the arrears for which the patnis had been brought to sale were in fact due, but the plaintiffs' case was that the sales had been irregular in that requisite notices had not been properly exhibited at the zamindar's kutchery and notices required to be served on the properties themselves had not been served at all. The defendants impleaded in the suits were the Berhampore Bank Limited which was defendant No. 1, the purchaser, and the zamindar, Maharaja Prodyot Kumar Tagore, the predecessor-in-interest of the petitioner. The common defence of the defendants was that the sales had been properly held, but the bank took a special plea that if the sales were set aside, it should be awarded indemnity under Section 14, para. 3 of the Putni Regulation for the loss sustained.

3. The trial court passed decrees, setting aside the sales and awarded the bank by way of an indemnity the amounts paid by it as purchase money and subsequent patni rents paid 'with interest at six per cent, per annum from the date of such payment or deposit.' In the decrees drawn up, interest was calculated up to the date of the decrees and the amounts awarded were Rs. 19,899/6/9 in the first suit (No. 8), Rs. 8198/1/3 in the second suit (No. 9) and Rs. 4590/1/3 in the third suit (No. 10).

4. Defendant No. 2, the zamindar, appealed to this Court. The suits had been valued in the trial Court at Rs. 5300/-, Rs. 3400/- and Rs. 2100/-respectively. Defendant No. 2 adopted the same valuations and, by his grounds of appeal, objected only to the findings as to the invalidity of the sales. No ground was taken against the indemnity awarded to defendant No. 1, either as to the awards themselves or as to their quantum. The amounts of the money decrees were not included in the valuation of the appeals, nor was any court-fee paid thereon.

5. Although no objection to the amounts of indemnity had been taken by the grounds of appeal, it was urged at the hearing that in computing the loss caused to the purchaser-bank, account should have been taken of the collections which the bank might have made from the tenants. This Court repelled that objection mainly on the ground that the question of collections was a question between the purchaser and the patnidars who only would be entitled to the rents paid by the tenants if the sales were bad and that the zamindar could not claim any debit on account of the collections, if indeed any collections had been made. On the main question of the validity of the sales, the Court held, in agreement with the trial Court and on the same grounds, that they were bad. As to the indemnity, the Court expressed its findings in the following words:

'The purchaser 'qua' purchaser is to be compensated and is compensated for loss which will include the purchase money paid by him as also the rents paid by him and he is to get interest on the same. The interest will be calculated upto the dates of payment of the respective amounts from the dates of their deposit'.

In the result, the appeals were dismissed with costs.

6. The present applications for leave to appeal are, as I have said, by defendant No. 2, the zamindar. He has prayed for the consolidation of the three appeals for the purposes of valuation. His contention is that the appeals satisfy the valuation test and the judgment of this Court is not a judgment of affirmance and, therefore, he is entitled to leave to appeal as of right. Alternatively, he contends that even if the judgment be held to be a judgment of affirmance, he ought to be granted leave because the appeals involve substantial question of law.

7. The applications were argued at great length and there were so many shiftings of ground on the part of the petitioner that he seemed not to know his mind, or to know what case to make.

8. No case was sought to be made before us under Sub-clause (c) of Article 133 of the Constitution. The petitioner must, therefore, make out that the value of the proposed appeals is not below the statutory limit and if he fails in that regard, it would be the end of the applications.

9. So far as the applications themselves are concerned, they have been framed on the footing that none of the appeals, taken individually, satisfied the valuation test and accordingly a consolidation has been prayed for. The specific statement in para. 25 of the applications is that 'the value of the subject-matter of the dispute in the above suits in the court of first instance and still in dispute on appeal was and is still much more than Rs. 20,000/-.' The case sought to be made, therefore, is that the valuation applicable is that laid down in Article 133 of the Constitution and that the said valuation is to be reached by adding up the values of the three causes. In fact, that was the basis upon which the petitioner's case was first put.

10. I might observe in passing that at the top of each of the applications, one finds the following entry: 'Application valued at above Rs. 20000.' What that means, in view of the statements made in the body of the petition and the prayer for consolidation made, is not clear. In any event, to say that an application carries a certain value, appears to me to be wholly meaningless. What both the Constitution and Code of Civil Procedure contemplate is the value of the subject-matter of the dispute or, in other words, the value of the proposed appeals. There is no such thing as the value of an application, nor, to my mind, is the requirement of procedure, if not also of law, is satisfied by merely saying that the valuation exceeds the statutory limit. It is always necessary mat in the body of the petition the petitioner should say how he reaches the valuation which he has put at the top of the petition and the valuation must, to my mind, be always an exact figure and not merely that it is above a certain sum.

11. I find myself unable to hold, as I observed in the course of the argument, that the three proposed appeals before us involve substantially the same questions, as required by Order 45, Rule 4 of the Code and may property be consolidated. In regard to each sale, one of the objections taken was that the sale was bad, because the notices had not been served on the patni concerned and the petitioner sought to prove due service by a separate set of witnesses in each case. Five of the grounds taken in the memorandum of each of the proposed appeals relate to sufficiency and regularity of the service and to the validity of the sale. In my opinion, it is quite impossible to hold that a question as to whether property 'A' was duly sold is the same question, substantially or otherwise, as to whether property 'B' was properly sold, when, particularly, the sales were separate and the regularity of each sale was sought to be proved by separate evidence which had necessarily to be separately adjudged.

Mr. Sen Gupta contended that Order 45, Rule 4 did not require that the questions should be wholly identical, but only required that they should substantially be the same and his further argument was that the substantive question in the present appeals was the question of compensation or indemnity which was common to all. I cannot, however, see how the substantial question can be the question of the indemnity, because till the grounds taken against the decision concerning the validity of the sale are rejected, no question regarding compensation can arise at all.

Besides, it was held by the Madras High Court in the case of -- 'Balanagayya Chetti v. Varadarajulu Chetti' AIR 1939 Mad 734 (A); that the fact that there was a question common to all of a number of suits, would not entitle an appellant to an order for consolidation, if there were other questions which were not common. With that decision I respectfully agree. The inconvenience of consolidating a number of appeals, when each one of them involves some question or questions peculiar to itself, is patent and, in my view, 'substantially the same questions' mean, not that the principal question is common or that the majority of the questions are so, but that all the questions are common and basically the same, raising the same issues of law and fact.

Mr. Sen Gupta contended that the questions contemplated were only the questions to be considered and decided by the Supreme Court in the appeal and he referred to a Patna case. Assuming that that is so, I have already pointed out that the questions proposed by the petitioner for decision by the Supreme Court in his grounds of appeal are not the same in all the appeals, inasmuch as, as many as five grounds have been taken in each appeal with reference to the due service of the notice in connection with each sale. As a last resort and for the first time in the course of his reply, Mr. Sen Gupta submitted that he would not press the grounds relating to the validity of the sales and thereby he would reduce the appeals to a condition in which they would involve common questions.

I am not prepared to indulge the petitioner in the manner prayed for. The power to order consolidation conferred by Order 45, Rule 4 is only discretionary and when a petitioner has prayed for a consolidation of appeals, which could not possibly be consolidated, and insisted on an order for consolidation by a lengthy argument, I am not prepared, when at last in the course of his reply offers to prune and edit his appeals, to permit him to do so, only to enable him to take appeals of small value to the Supreme Court which the Constitution doss not intend ordinarily to be taken there. In my opinion, therefore, the prayer for consolidation must be rejected.

12. The next attempt of Mr. sen Gupta was to make out that even taken individually, the appeals satisfied the valuation test. His first contention was that inasmuch as the suits had been brought in 1940, it would be sufficient if the value of each appeal was Rs. 10,000/- as required by the law in force at that time.

13. In my opinion, that contention is not correct. It is true that, according to a Pull Bench decision of this Court, as soon as a suit is brought, the right to prefer an appeal or appeals provided by the law, current at the time, becomes vested in the parties and such right cannot be taken away except by a new law and except by the express words or the necessary intendment of such law. But in order that the right of appeal may subsist, it is necessary that the conditions under which the right can be exercised should also subsist. It may be that when the judicial system and the hierarchy of the Courts remain the same, the right of an eventual appeal or appeals, accrued at the date of a suit, remains unaffected by subsequent changes in the law, unless modified expressly or by necessary implication, but when the whole political structure of a country, including the judicial system itself, changes and a new Court of final appeal is set up under a new Constitution with a new jurisdiction created for and assigned to it, there can no longer be any question of appealing to such new jurisdiction under the old right, except so far as it may be expressly provided for. There can thus be no appeal in the present case to the Supreme Court, as exercising jurisdiction under Article 133, except under conditions laid down in that Article. Those conditions are not satisfied.

The only question then is whether there can be an appeal on a valuation of Rs. 10000/- under Article 135. That Article was not referred to in the course of the argument, but it provides specially for the jurisdiction of the Supreme Court in matters to which Articles 133 and 134 do not apply, but with regard to which jurisdiction and power were exercisable by the Federal Court immediately before the commencement of the Constitution under some existing laws. It is true that immediately before the commencement of the Constitution an appeal lay to the Federal Court in cases valued at Rs. 10000/- under the Federal Court (Enlargement of Jurisdiction) Act, 1947, and the Abolition of the Privy Council Jurisdiction Act, 1949. But I do not think that where the judgment sought to be appealed from was passed after the commencement of the Constitution and the application for leave to appeal was necessarily made after such commencement, the case is one where Article 133 does not apply. Read in a plain manner, Article 133 would seem to contemplate not any pending proceedings, but only subject-matters. But assuming that proceedings are also contemplated, the operation of the Article, to my mind is limited to cases where the right of appeal in such proceedings was not a mere potentiality but had actually arisen in a concrete form immediately before the commencement of the Constitution, such as where an application for leave to appeal had already been made to the Federal Court or when, at least, the decision of the High Court, sought to be appealed from, had been given.

If Mr. Sen Gupta's contentions were correct, Article 133 would practically remain a dead letter, till all suits brought up to 25-1-1950, had been finally disposed of. In my opinion, where the judgment sought to be appealed from was delivered after the commencement of the Constitution and the application for leave to appeal is made therafter it is Article 133 which applies and not Article 135. It follows that the valuation limit of Rs. 10,000/- is not applicable to the present appeals.

14. The next contention of Mr. Sen Gupta was that even if the valuation limit of Rs. 20,000/- was applied, the value of the subject-matter in dispute on appeal to the Supreme Court was clearly Rs. 20,000/- or more in each case and that, for the purposes of the value in the Court of first instance, an enquiry should be directed. It was said that the trial Court's decree in the first case was for Rs. 19899/6/9 and since, by the appellate decree, interest even after the date of the decree, of the trial Court had been allowed, the value of the subject-matter in dispute in the proposed appeal would clearly be more than Rs. 20,000/-.

Leaving the first case aside, it will appear that even on the footing contended for by Mr. Sen Gupta, the value of the subject-matter in dispute on appeal in the second and the third cases would not reach the statutory limit. In the second case, the purchase money decreed was Rs. 3400/-and the rent decreed was Rs. 4075/13/6 altogether Rs. 7475/13/6. The trial Court's decree was passed on 10-5-1941, and the appellate decree was passed on 10-1-1952. If interest on the amount of Rs. 7475/13/6 be calculated up to the date of the appellate decree and that amount is added to the amount of the trial Court's decree of Rs. 8198/1173, the total would still be below the appealable minimum.

The position in the second case is even, worse, where the purchase price decreed was Rs. 1935/-and the rent decreed was Rs. 2,2497973 and the whole decree was for Rs. 4590/1/3. Thus, even if interest for the period between the date of the trial Court's decree and that of the appellate decree be added, the total valuation would not reach the appealable limit in the second and the third cases, subject to what I have to say hereafter about the value of the respective patnis.

15. As to the first case which I left aside for the time being it would seem that on the basis of the contention of Mr. Sen Gupta, the valuation test would be satisfied so far as the subject-matter in dispute on appeal is concerned and therefore the enquiry must be whether it is satisfied as to the subject-matter of the dispute in the Court of first instance. To my mind it is not without significance that whereas the language in Section 110, Civil P. C. was and still remains even after the adaptation, 'the amount or value of the subject-matter of the suit', the language of Article 133 of the Constitution is 'the amount or value Of the subject-matter of the dispute'. If I may say so with respect, the language of the Constitution appears to me to be more appropriate and accurate, because in any contention between two parties, the value of the subject-matter must be the value of the issue between them and not always the value of the suit which may be different.

Thus, if a suit raises an issue between two co-defendants, different from the issue as between the plaintiff and them, then, as between themselves, the value of the dispute will be the value of the issue in which they are interested 'inter se'. Mr. Sen Gupta contended that Section 110, Civil P. C., which still retained the old language, conferred an additional jurisdiction on the Supreme Court and he argued that a Legislature could always confer some further jurisdiction on an existing Court. That argument, it seems to me, will not avail the petitioner in the present case, because the Parliament has not yet legislated and all that has happened is that Section 110 has been dealt with under the Adaptation of Laws Order, under which the existing laws could only be adapted to the Constitution, but not added to; in the second place, neither Article 138, nor item 95 in the Union List can have any application, inasmuch as the first is limited to matters included in the Union List and the second expressly excludes the jurisdiction and powers of the Supreme Court.

All that remains is item 13 of List III which is 'civil procedure', but I do not think that it is too clear that the powers of Parliament to legislate with regard to Code of Civil Procedure, as conferred by item of List III, read with Article 246, includes the power to legislate regarding the jurisdiction and powers of the Supreme Court. Besides Section 110 refers back to Section 109 and Section 109 is subject to the Constitution. Thus in any event it appears to me that Section 110, Civil P. C., as it stands now, cannot possibly be read as supplementing the provisions of the Constitution with regard to appeals specifically made in Article 133 and adding to those provisions even with regard to matters covered by them. The enquiry must, therefore, be as regards the amount or value of the subject-matter of the dispute'.

16. If that be so, what was the dispute between the petitioner and the respondents in the Court of first instance? He is the zamindar. The arrears for which the patni was sold -- I am thinking here only of the first case -- was Rs. 5372/13/3 and the price fetched at the sale was Rs. 5300/-. The existence of the arrears was not disputed. It would thus follow that by the suit, which was a suit by the patnidar to have the sale set aside, all that was put in peril in the case of the petitioner was the petitioner's right or opportunity to get his arrears of rent out of the sale-price, so far as they could be met, and if the sale was set aside, he would be relegated to other means of recovery. As between the petitioner and the patnidar, the dispute therefore was only as to whether the petitioner would be allowed to retain the opportunity of applying the sale price to the satisfaction of his arrears or whether that opportunity was to be taken away from him. The dispute did not involve any dispute as to the petitioner's money claim, still less any dispute regarding the title to the patni.

The alternatives before the petitioner were the advantage of getting his dues out of the sale-price and the disadvantage of having to recover them by other means and therefore the value of the dispute would not seem to be even the sum of Rs. 5300/- but only the value of the advantage of getting that sum at once and without further trouble. But even assuming that the subject-matter of the dispute was the whole sum of Rs. 5300/-itself, even then, the case is one of the 'amount' of the subject-matter of the dispute and not of the 'value'' of the subject-matter, because the subject-matter is itself an amount. As between the petitioner and the patnidars, therefore, the amount of the subject-matter of the dispute could not be more than Rs. 5300/- and it could by no means be tne value of the patni. There was, however, a subsidiary dispute as between the petitioner and defendant No. 1, the purchaser, which concerned the claim of indemnity for the loss suffered and the amount of that dispute would be the amount of the purchase price of Rs. 5300/-, the amount included in the decree as subsequent rent paid, Rs. 13,363/11/0, assuming the whole amount was paid before the suit and also pre-suit interest, but nothing more.

Under the decision of the Privy Council in --'Mangamma v. Mahalakshmamma' , post-suit interest cannot be included in the valuation, as such interest cannot be said to be the subject-matter of the suit. The sale was held on 14-5-1939 and the suit was brought on 8-4-1940, that is roughly about eleven months later. Even if the whole of the subsequent rent was paid on the date of the sale, which could not possibly be, but even assuming that it was so paid, the pre-suit interest on the purchase price and the amount of the rent paid could not, when added to these two amounts, take the total valuation to the figure of Rs. 20,000/-. No details were given to us as to when the subsequent rents were deposited. I have, therefore, made the most generous assumption possible. But even on that assumption, the subject-matter of the dispute in the Court of first instance falls below the appealable minimum.

17. Mr. Sen Gupta's contention was that as to the Court of first instance, the relevant, value was the value of the suit, that such value was the true value of the patni and that therefore an enquiry should be made as to what that value was. I have already given my reason for holding that under Article 133 the relevant value is not the value of the suit, but the value of the dispute and that on the merits of the present case, the dispute with the petitioner was a dispute as to an amount and that therefore the only relevant enquiry is what that amount was. The value of the patni does not come into the computation at all.

Mr. Sen Gupta seemed subsequently to urge that the value of the subject-matter of the dispute was the value of the patni, plus the value of the indemnity, although in his opening he made no reference to the indemnity at all but only urged that if an enquiry was made as to the true market value of the patni it would be found to exceed Rs. 20,000/-. If, as Mr. Sen Gupta contended, what is to be regarded is the value of the suit, the indemnity does not come into the computation at all, because the plaintiffs patnidars had nothing to do with the indemnity and did not include it in the valuation of their claim in the suit.

Mr. Sen Gupta contended that the petitioner's contention against the plaintiffs was that the benefit of the purchased patni should remain with the purchaser and therefore the value of the patni came in and his further contention as against the purchaser was that he should not be compelled to pay any indemnity and thereby came in the amount of the indemnity. Even on that basis, the petitioner would not be in a better position. The plaintiffs valued their suit at the market value of the patni and, rightly or wrongly, put it at Rs. 5300/- computed at fifteen times the annual net profits which they put at Rs. 356/0/11. The petitioner took no objection to the valuation and himself adopted it for the purpose of his appeal to this Court and paid court-fees accordingly. Similarly, he took no objection to the valuations or the other two suits and, in view of their low valuation preferred his appeals to a District Judge from whose Court he got them subsequently transferred to this Court.

The case is thus precisely on all fours with the decision of the Privy Council in -- 'Kristo Indro Sana v. Huromonee Dassee', 1 Ind App 84 (PC) (C), with only this distinction that the intending appellant in that case was the plaintiff, whereas here it is the defendant. But that distinction does not seem to me to make any difference. It was held by the Privy council in the case to which I have referred that the defendant, not having Objected to the valuation of the plaintiff and in fact having adopted that valuation for the purposes of his own appeal, could not turn round and say, when the plaintiff wanted to appeal to the Privy Council, that the valuation was different. It seems to me to make no difference that it is the defendant who is the intending appellant in the present case and that his contention is not that the true value is lower than the value put upon the suit, but higher.

The principle of the decision of the Privy Council is that a party cannot approbate and reprobate. It is true that the principle does not apply where a suit is valued, not at the real or market value of the property concerned, but according to the standard prescribed by some fiscal statute, as was pointed out in -- 'Mahendra Narayan v. Janakinath' : AIR1931Cal417 . But the suit in the present case had to be valued at the market value of the property under Section 7(4)(a), Court-fees Act, read' with the Suits Valuation Act, although the market value was to be taken to be fifteen times the annual net profits.

In the case in -- '1 Ind App 84 (PC) (C)', also, the suit was valued at fifteen times the annual net profits and yet the Privy Council applied the principle of approbation and reprobation. Mr. Sen Gupta referred to another decision of the Privy Council in -- 'Baboo Lehraj Roy v. Kanhya Singh', 1 Ind App 317 (PC) (E), but that case is only an illustration of the principle that where a party valued his suit in observance of a rule of valuation prescribed by the stamp law of the country, he is not precluded from showing for the purposes of an appeal to the Privy Council that the real value of the property in dispute does reach the appealable amount.

It appears, however, that in the second case also, stamp duty was payable on the market value & the market value was to be taken to be a certain multiple of the revenue payable to the Government and, where the property was not revenue paying, a certain multiple of the annual net profits, but the Privy Council did not apply the principle which it had applied in the earlier case. Both the cases were considered by this Court in --'Basanta Kumar v. Secy. of State', 14 Cal WN 872 (F), where the distinction was said to be that, in the first case, the value as sought to be lowered by a party who had accepted it for the purposes of a previous appeal preferred by him, whereas in the latter case, the value was sought to be raised by a party in circumstances where the principle of approbation and reprobation did not apply, inasmuch as the valuation had been made in accordance with the stamp laws of the country.

With very great respect, I confess I find it difficult to appreciate that distinction, because the method of valuation in both the cases was the same and if the defendant in the first case was approbating and reprobating, so was the plaintiff in the second case and, conversely, if the plaintiff was not approbating and reprobating in the second case, in view of the method employed in valuing the suit, nor could the defendant be doing so in the first case, because the method of valuation was the same. I must also say, that the observation made by the Privy Council that the defendant approbated when he preferred his awn appeal on the valuation given on the plaint, is not very clear, since he could not have done otherwise and could not say that although the suit had been valued at a certain market value of the property, he would yet put a higher valuation on the appeal and pay higher court-fees.

The petitioner in the present case however could and ought to have included the amount of the indemnity decreed against him and paid court-fee thereon when he appealed. He did not do so, but at the present moment I am considering only the value of the suit on the basis of the value of the property. On that matter, the defendant had no option at the stage of the appeal, but he certainly could have objected to the valuation of the suit in the trial court which he did not do. What the Privy Council probably meant was that when the defendant did not object to the valuation put by the plaintiff on the property in the trial court, he thereby obtained the privilege of paying a lower court-fee and probably of going to a particular court, if it fell to him to prefer an appeal from the trial Court's decree.

It is true that in the present case the suit was valued at fifteen times the net annual profits, but the petitioner could certainly have said, as he was trying to say before us, that the net annual profit was not Rs. 356/0/11 but was more. Not having done so and having adopted the same valuation for the purposes of his own appeal, he seems to me to come directly under the principle of the decision in '1 Ind App. 84 (PC) (C)'.

18. Mr. Sen Gupta pointed out that the plain-tiffs, while purporting to value the suit at the figure of the sale price on the basis that that was in fact the market value of the property, had at the same time said in their plaint that the property had been sold at a grossly inadequate price. That contradiction is undoubtedly there, but even with notice of that statement, the petitioner did not object to the valuation. On the other hand I find he stated in para. 7 of his written statement that 'the sale price fetched is not inadequate,' and therefore it seems to me that there was not merely an omission to object to the plain-tiff's valuation, but also a positive assertion that the price of Rs. 5300/- was a proper and sufficient price and the true value of the property.

It will be realised that that assertion of the petitioner had no reference to any fiscal standard.It was clearly a statement as regards the truevalue of the property. Mr. Sen Gupta also referred to the evidence of an officer of the plaintiffswho had spoken of higher annual profits of thethree patnis. Obviously, what the witness wastrying to do was to support the case made by hismaster that the properties had been sold at aninadequate price, but what we are concerned withhere is not so much what the plaintiffs said butwhat the petitioner himself said. He was saying,in spite of the statement in the plaint and in spiteof the evidence of the plaintiff's witness, that theproperty had not been sold at an inadequate priceand thereby he was making a positive assertionthat the true value of the property was Rs. 5300/-.That being so, it seems to me that the principleof approbation and reprobation clearly applies tohim.

I have already held that so far as the value of the subject-matter of the dispute in appeal is concerned, the second and the third appeals are not of the requisite valuation, but I reserved the final opinion till the question of the value of the patni was dealt with and disposed of. The reasoning which I have set out above in respect of the first patni will apply in the case of the second and the third patnis as well and therefore none of the appeals, in my view, satisfies the valuation test.

19. If the proposed appeals do not satisfy the valuation test, no other question arises, but for the sake of completeness I would deal with the argument that the decree of the appellate Court did not affirm the decision of the Court of first instance. The argument was that the first Court was silent as to the post decree interest and therefore must be deemed, under Section 34(2), Civil P. C., to have refused such interest, but the appellate court gave the plaintiffs interest till the date of payment and thereby included post-decree interest in variation of the trial Court's decree.

In my opinion, that argument is wholly misconceived, both as to the facts of the case and as to the view of Section 34(2) on which it rests. Section 34(2) speaks of further interest on 'such aggregate sum as aforesaid', and the aggregate sum contemplated is, as said in Sub-section (1), the aggregate of the principal sum adjudged, the interest from the date of the suit up to the date of the decree and the pre-suit interest. The aggregate contemplated by Section 34(2) is the aggregate of those three sums. In the present case, the appellate decree has not awarded and the plaintiffs are not claiming post-decree interest on the aggregate sum of Rs. 19899/6/9 adjudged and awarded by the trial Court. All that the appellate court said is that the plaintiffs will get interest on the principal sums, that is the purchase price and the amounts of rents paid from the date of the payment till the date of repayment.

Section 34(2) has therefore no application in relation to the trial Court's decree. There being thus no constructive refusal of interest, one has to see what the trial Court actually awarded and whether the appellate Court has awarded anything more. The trial Court in its judgment referred to 'payment of purchase money and rents' and said that the plaintiffs would

'get back all such money from defendant No. 2 with interest at six per cent per annum from the date of such payment or deposit.'

That clearly means that the plaintiffs would get back the moneys with interest from the dates of their payment, whenever they get them back. The second terminus, that is 'up to the date of the realisation', though not expressly stated, is clearly implied. The appellate court said that interest will be calculated up to the date of payment of the respective amounts from the dates of their deposit' and, in saying so, was saying nothing different, it is true that the decree drawn up in the trial court computes the interest up to the date of the judgments and declares that amount as payable under the decree, adding nothing more. But it is clear that the decree is not in accordance with the judgment and might be amended at any time.

It is to be noticed also that Article 133 speaks of the appellate court affirming the 'decision' of the trial court and not of affirming the trial Court's decree. Defendant No. 1 did not appeal from the trial Court's decree and therefore it ought not to be lightly assumed that, nevertheless, the learned Judges purported to modify the decree in his favour and to give him something more than what had been given by the trial Court's decree. As I have pointed out, this court did nothing of the kind and repeated exactly what the trial Court had said, although it did so in somewhat clearer language.

20. The proposed appeals therefore do not satisfy the valuation test. The judgments are judgments of affirmance. It is therefore not necessary for me to consider whether any substantial question of law is involved. I might however add that so far as the questions raised regarding the validity of the sales are concerned, they are all stale questions, each concluded by a series of decisions of the Privy Council. The only other question raised concerns the indemnity awarded to defendant No. 1 and the principal contention, as far as I understood Mr. Sen Gupta, was that in computing the amount of the indemnity collections made by the defendant No. 1 should be deducted.

As I have already pointed out, the ground was not even taken in the appeals to this Court, though it appears to have been urged at the hearing. But even at that time it was only said that defendant No. 1 had 'perhaps' made some collections. The questions of fact which are clearly involved were never investigated. Besides, as this court pointed out, if any rents were collected by the purchaser, it only collected money which would, if the sales were set aside, be found to belong to the plaintiffs and I do not see that a substantial question of law arises out of the petitioner's contention that he should be given credit or a set off in respect of moneys which belonged to somebody else and, if collected at all, was collected to the detriment of that other body.

21. In the result, these applications are dismissed with costs -- the hearing fee being adjudged at five gold mohurs in each case, to be divided between respondent No. 1 and the remaining respondents in the proportion of one-third and two-thirds.

Lahiri, J.

22. I agree.


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