RAJA RAM Vs. CHHADAMMI LAL

JUDGEMENT

(1.) The question for consideration in this appeal is whether the claim of the plaintiff was barred by Section 47 of the Civil P. C.. It appears that certain property was mortgaged by Gokul Chand in favour of Chhadammi Lal, his cousin, on the 20 of May 1909. Subsequently another mortgage was made by Gokul Chand in favour of Raja Ram, the present plaintiff-appellant, on the 6 of September 1911.

(2.) On the 18 of August 1920 Chhadammi Lal filed a suit on his mortgage making Rajaram a party to that suit. The defence of Rajaram was that the mortgage deed had been paid up, but before that plea could be tried, the counsel who appeared for Chhadammi Lal stated that the mortgage bond held by Rajaram had been paid up, and that Rajaram should consequently be exempted from the claim. Rajaram, however denied that the money due on his mortgage bond had at any time been paid, but the Courts, acting on the statement of the counsel for Chhadammi Lal, exempted Rajaram from the claim without trying that issue or the issue which Rajaram had raised in the suit. A decree was eventually passed in favour of Chhadammi Lal for the sale of the mortgaged property, and it was mentioned in the decree that Rajaram had been exempted from the suit.

(3.) The present suit was filed by Rajaram for the recovery of the money due on his mortgage, and Chhadammi Lal was impleaded as one of the defendants. The allegation of Rajaram was that the mortgage bond held by Chadammi Lal dated the 20 of May 1909 had really been paid up, and that the decree obtained by Chhadammi Lal on foot of that mortgage against Gokul Chand and his sons was collusive and fraudulent.