NIDDHA LAL Vs. COLLECTOR OF BULANDSHAHR

JUDGEMENT

(1.) THIS appeal arises out of a suit to enforce a mortgage, dated the 12th of January 1892, executed by Shankar Lal in favour of Ram Sarup, the predecessor- in-title of the plaintiffs-respondents. The mortgage was executed in lieu of money due upon two decrees obtained against Shankar Lal by Ram Sarup. The appellants are the sons and a grandson of Shankar Lal and their contention in the Court below was that the debt was not one for which the family property could be rendered liable. They raised various other pleas denying the genuineness of the bond, denying consideration and also denying the validity of the amount of consideration. The Court below has decreed the claim. The main contention in this appeal is that the decree which formed part of the consideration for the bond was a decree for money embezzled by Shankar Lal and that, therefore, this part of the consideration was tainted with immorality and is not binding on the appellants. On the face of it part of the consideration was an antecedent debt, namely, the decree obtained against Shankar Lal, but if that decree relates to a transaction which was tainted with immorality, the existence of the decree would not entitle the plaintiffs to enforce the mortgage against the joint family property belonging to the mortgagor and the appellants. The decree was passed in a suit brought by one Chaudhri Lachman Singh against Shankar Lal. Shankar Lal and his brother Mahbub were the agents and servants of Lachman Singh. He alleged that these persons had received from him Rs. 4,000 odd for payment to a creditor of Lachman Singh; that they did not pay the creditor; and that they Sub-sequently did not return the money. Shankar Lal denied having received the money, but the Court found that he had received it and made a decree against him. THIS was not exactly a case of criminal misappropriation of money by a person to whom it had been entrusted. It was a case of money received by an agent who had not accounted for it and had thus incurred a civil liability. Had it been a case of embezzlement of a criminal nature which rendered Shankar Lal liable to a criminal prosecution, or had it been a case in which he had executed a bond for the purpose of suppressing a criminal prosecution, other considerations would have arisen, but in the present case it cannot be said that the decree was passed for recovery of money which had been criminally embezzled. Therefore, the rulings which the learned Vakil for the appellants has referred to and on which he relies, do not apply to the present case. One other question was raised on behalf of the appellants, namely, that the suit having once abated and having been subsequently restored, the order restoring the suit was improper. It appears that the suit was dismissed on the ground that it had abated, but under Order XXII, Rule 9, of the Code of Civil Procedure the abatement was set aside, and the case was restored. Under Order XLIII no appeal lies from an order setting aside anabatement. Reliance is placed upon the provisions of Section 105 of the Code of Civil Procedure. It is urged that there was an error, defect or irregularity in the order passed by the Court restoring the case and that this entitled the appellants in the present appeal to question the validity of the order. In our opinion this contention is without force. The words "error, defect or irregularity" in the section evidently mean error, defect or irregularity affecting the decision of the case on the merits. THIS has been held in a number of cases of which we need only refer to Tasadduq Husain v. Hayat-un- nissa 25 A. 280 : A.W.N. (1903) 39. The result is that the appeal fails and we dismiss it with costs, including fees on the higher scale.