MANGA RAM Vs. HAR LAL

JUDGEMENT

(1.) THIS is second appeal by the plaintiff against the judgment and decree of the learned District Judge, Merta, dated the 13th August, 1954, reversing the decree of the learned Munsiff Merta dated 29. 2. 52 and dismissing his suit.

(2.) THE fact giving rise to this appeal are that one Amrit Raj, who has appeared as the plaintiff's witness (P. W. 3) in the present case, had obtained a decree against one Hazari. In execution of the said decree, a house (Nohra) belonging to the judgment debtor was attached by the executing court. THE present plaintiff Mangaram filed an objection petition against the said attachment on the ground that the house, which was attached, was already mortgaged by Hazari (judgment debtor) with one Harlal and that Harlal in his turn had transferred his mortgagee rights to the plaintiff. This objection petition was dismissed by the executing court. THEreafter, the plaintiff brought a regular suit according to the provisions of O. 21, R. 63 C. P. C. against Amritraj for a declaration that the house was not liable to attachment and sale. Amritraj's plea in that case was that the alleged mortgage by Hazari in favour of Harlal and the assignment of the mortgage rights by Harlal in favour of the plaintiff Mangaram were sham and collusive and these documents were executed only to defeat the rights of Hazari's creditors for realising their debts. This argument found favour with the trial court and the plaintiff's suit was dismissed. That case went in second appeal before the High Court of the former State of Jodhpur. It was held by the High Court as well that the mortgage deed executed by Hazari in favour of Harlal and Harlal's assignment of his mortgagee rights in Mangaram's favour were both sham and collusive. It seems that Mangaram had not impleaded Harlal as a defendant in the above case. Having lost the said case, Mangaram filed the present suit against Harlal for realising Rs. 195/- which were said to have been given to Harlal in consideration of the latter's assignment of his mortgagee's right in the plaintiff's favour. He also claimed from him Rs. 250/- for the expenses incurred by him in his objection petition and suit referred above. Defendant Harlal contested the suit and pleaded that the assignment made by him in the plaintiff's favour was really sham and collusive, that this matter was already decided by the High court of the former State of Jodhpur and that the plaintiff had no right to get from him Rs. 195/- which he had never given to him. According to his vision, the plaintiff knew that the mortgage deed executed by Hazari in defendant's favour was collusive, but still he thought that he would be able to save the property from Hazari's creditors and so he got the assignment made in his favour by giving Rs. 21/- to him. THE trial court framed the following 3 issues; - (1) Whether plaintiff did not pay Rs. 195/- for the assignment of mortgage? (2) (a) whether plaintiff spent Rs. 250/- in Ujardari and civil suit? (b) If so, is he entitled to claim amount from the defendant? (3) Relief. After recording evidence of the parties, the Munsiff came to the conclusion that the defendant had failed to discharge the burden placed upon him and to prove that he had received only Rs. 21/- and not the entire amount of Rs. 195/ -. He further found that the plaintiff had been able to prove that he had incurred an expenditure of Rs. 205/-in the previous litigation and so he passed a decree for Rs. 400/- against the defendant on 29-2 52. Aggrieved by this decision, the defendant went in appeal which was allowed by the learned District Judge. He set aside the trial court's decree and dismissed the suit. Hence, this second appeal by the plaintiff.