LAWS(PVC)-1939-8-132

BHIKHARI MAHTO Vs. BANSROPAN RAM

Decided On August 04, 1939
BHIKHARI MAHTO Appellant
V/S
BANSROPAN RAM Respondents

JUDGEMENT

(1.) This is a Letters Patent appeal against a decision of Agarwala J., in second appeal reversing the decrees of the Courts below and dismissing the plaintiff's claim. The facts of the case can be shortly stated as follows: The plaintiff mortgaged certain lands in favour of defendant 1 by a mortgage dated 11th September, 1929. The consideration for the mortgage was Rs. 500 and a sum of Rs. 272 out of the sum of Rs. 500 was left with defendant 1 to pay off certain moneys due from the plaintiff to defendant 2 on hand-notes. The Courts below have found that defendant 1 paid the money as directed; but unfortunately for the plaintiff, defendant 2 brought a suit against him in that Small; Cause Court, for what he alleged was due on the hand-notes, and recovered by means of a decree of that Court a sum of Rs. 316-7-0. It may be observed that in the present case defendant 2 tried to argue that his suit in the Small Cause Court referred to, sums other than dues on these particular hand-notes; but the Courts below have found that this suit related to the very hand-notes which had been discharged by the payment made by defendant 1 at the plaintiff's direction to defendant 2. The suit, as originally framed) was brought against defendant 1 and in, the plaint it was alleged that he had not paid defendant 2 as agreed in the mortgage deed. Defendant 1 pleaded that he had paid defendant 2, whereupon the plaintiff obtained leave to amend his plaint and add defendant 2. As I have stated, both the Courts below have come to the conclusion that defendant 1 paid defendant 2 before the latter brought the suit on the hand-notes, and before Agarwala J., it was admitted that this payment had been made, and that no point could be made against defendant 1. The learned Munsif and the learned Sub-ordinate Judge came to the conclusion that.

(2.) the plaintiff was entitled to recover as against defendant 2 the sum which he had been compelled to pay twice over in discharge of the hand-notes. Both the Courts however were of opinion that the plaintiff had no claim whatsoever against defendant 1 who had paid the sum of Rs. 272 to defendant 2 as directed. In second appeal Agarwala J., held that the plaintiff could not recover in this suit as against defendant 2. He held that though the plaintiff had unfortunately been compelled by a decree of the Court to pay the sum due a second time, yet such could not be recovered by a subsequent suit.

(3.) It has been argued before us that the plaintiff must be entitled to recover what he has paid twice over from defendant 1 or from defendant 2. "With regard to defendant 1, it is to be observed that the plaintiff has not appealed against the decree which was in favour of defendant 1. Both the Courts below, as I have said, dismissed the claim as against defendant 1. In any event, it is perfectly clear that the plaintiff can have no claim whatsoever against defendant 1, because he discharged his obligation and paid to defendant 2 the sum of Rs. 272 as he was directed to do by the terms of the mortgage deed.