1. This is an appeal by the plaintiff in a case of which the facts appear to be somewhat complicated at first sight, but the point before us is really a very simple one. The facts are sufficiently set out in the beginning of the judgment of the lower Appellate Court. The plaintiff seeks to recover money, paid out by the Collector to the defendant No. 1 as surplus sale-proceeds belonging to the share of one Promotho. This money was left in the Collectorate by the plaintiff who now says that he had a right and seeks to recover it from defendant No. 1. It was left on the allegation that one-third of the surplus sale-proceeds belonged to Promotho, a third to Satya Prosad and the other third to the third brother, Lalit Mohan, and he himself asked to be allowed to take away two-thirds. He was allowed to do so after a considerable number of applications in the Court and he went away leaving this money at the disposal of Promotho. Promotho's creditor defendant No. 1 came along. He had got a decree against each of the three brothers and in execution of it he got their shares sold in separate lots and he claimed what he had a right to, unless the money was already applied to something else, namely, to have the surplus sale-proceeds of Promotho's share paid out to him. But this Hari Das drew the money in January 1904, and defendant No. 1 in the other case, Sarat Chandra, draw a part of the money in January 1904 and a part in March 1904; and the plaintiff never said anything, never made any claim and filed the plaint in this suit to recover the money from these defendants on the 13th February 1907. The learned Judge in the Court below found that the plaintiff had full knowledge of all these transactions and yet he did not either come in and protest or try to draw the money himself. The learned Judge further found as a fact that on the evidence it cannot be said that the value of Promotho's share at the revenue sale was in spite of incumbrances less than twenty thousand rupees. That, of course, would put an end to the plaintiff's case.
2. But it is urged in appeal, firstly, that the learned Judge has gone wrong in holding that there is any estoppel by reason of the petition of the plaintiff, Exhibit C, secondly, that he has mis-stated the facts and stated some facts for which there is no evidence, and that his final conclusion as to the value of the property is vitiated thereby.
3. As regards the first point, it may be conceded that the plaintiffs' petition, Exhibit 0, could not operate as an estoppel because he did not thereby seek to deceive the defendant nor did he make any representation to the defendant. It may also be conceded that the learned Judge has quoted from Bigelow the case of Dezell v. Odell 3 Hill 215 which has really no bearing upon the present case at all; but we think there is a great deal of force in his finding that the plaintiff by his conduct and by acquiescence has made the transaction of the defendant in withdrawing the money, although it might have been impeachable at the time, unimpeachable in equity at the present day. The finding of the Judge that as to the plaintiff's knowledge there is no question, seems to us to conclude that point. The defendant No. 1 had the right to draw any money which was lying to the credit of Promotho. The plaintiff allowed this money to be at Promotho's credit in the Collectorate and he made no objection when the defendant went to take it out; and as the learned Judge says quoting Kerr on Fraud, this would render the transaction unimpeachable after such a lapse of time.
4. Then as regards the second question, on the merits we are strongly of opinion that the decision of the learned Judge, though it may in many points be based upon erroneous findings of fact, cannot be impeached in second appeal. There is evidence which he was entitled to use and which he has used, and although he may have made some statements which are not borne out by evidence, if there is any evidence at all upon which he could have held that the property fetched a sufficient sum to leave a surplus after paying off the mortgage, that would conclude us. The plaintiff cannot put forward a title to recover the money which the defendant has drawn in the exercise of an undoubted legal title unless and until he makes out and proves conclusively that there was no surplus sale-proceed in Promotho's share available for the defendant No. 1. Now whatever view of the case be taken, he certainly has not on the finding of either of the Courts below made out such an affirmative case. The Subordinate Judge on facts which are by no means clear held that the property of Promotho did not fetch anything like what it was chargeable with under the mortgage. As is pointed out by the learned Judge, he deducted ten thousand and odd rupees which the Judge found were rents of two fictitious gantis created by Promotho in favour of his wife, instead of adding them and on that calculation alone the valuation at the time of the mortgage sale would very nearly balance the debt. But as the Judge points out, the valuation by results of mortgage sales is by no means conclusive evidence of the real value. In the absence of other evidence, it is, no doubt, good evidence of what the property actually fetched in a certain market. But the market in Court sales is notoriously not a favourable market for the judgment-debtor; and where there is other and independent evidence as to the real value of the estate, the Judge is certainly bound to give it very great weight.
5. We, therefore, think that the finding of fact by the learned Judge that the value of Promotho's share at the revenue sale was in spite of incumbrances more than ten thousand rupees cannot be impugned in second appeal, and that being so, the appeal fails and must be dismissed with costs.
6. This judgment will govern Second Appeal No. 332 of 1909.