BISWAMBAR BISWAS Vs. NILAMBAR MURARI

JUDGEMENT

(1.) The facts of the case out of which this appeal has arisen are these. On 2 April, 1915, defendant 4 borrowed a sum of Rs. 1,450 from defendants 1, 2 and 3. It was secured by a mortgage-deed which stood in the name of defendant 1. On 6 November 1920, it it alleged that defendants 1, 2 and 3 entered into an agreement to sell to the plaintiff the mortgage debt for Rs. 2,100. Plaintiff it is alleged paid the money. The deed of sale was not, however, completed for some reason or other.

(2.) The plaintiff then entered into an agreement with defendants 1, 2 and 3 which was that defendant 1 should bring a suit on the mortgage bond at plaintiff's cost and any money realised would be paid to the plaintiff. The suit was brought on 24 November 1922, defendant 5 who is the appellant now before us being impleaded as a purchaser of the equity of redemption. Defendants 1, 4 and 5 entered into compromise by which it was agreed that the liability of defendant 4 would be fixed at Rs. 2,100, and the suit was disposed of in terms of the compromise. It may here be stated that at the time when this compromise was entered into the plaintiff in the present suit was away in Akyab. The plaintiff then brought this present suit in which he asked; (1) that the agreement to sell the mortgage debt to him might be enforced : (2) that the decree passed on the solehnama might be declared fraudulent and inoperative; (3) that plaintiff was not bound by that decree, that that decree might be set aside, the mortgage suit restored to file and the plaintiff allowed to prosecute the mortgage suit. There was also an alternative prayer that it might be declared that the mortgage bond was sold to the plaintiff who paid the money and a decree granted to the plaintiff against defendants 1, 2 and 3 for the entire amount due on the mortgage and some further reliefs.

(3.) The suit was contested by defendant 5 alone the purchaser of the equity of redemption. The trial Court held the decree on the solehnama void and inoperative and he set it aside. He further ordered that the suit should be restored to file the present plaintiff substituted for defendant 1 as plaintiff in that suit. He also granted plaintiff specific performance of the contract to sell to him the mortgage debt against defendants 1, 2 and 3. On appeal the decree was upheld. Defendant 5 appeals to this Court.