1. This case is in a nut-shell. The facts are that two sums of Rs. 125 and Rs. 200 have been received by the defendant under certain special circumstances with the intention that they should be applied to a mortgage-decree which he bad against the plaintiff. It is always troublesome in these cases to give an accurate description of such a payment. The Rs. 200 paid is perhaps an illustration. Defendant 2 paid that to defendant 1 at the request of the plaintiff. If the parties were at ad idem, and the defendant being an honest person, was willing to receive that amount towards his decree, he naturally would agree that amount should be certified to the Court. For good reasons or bad the Code requires that such payment out of Court should be certified, otherwise an execution Court cannot take notice of it. Probably it was thought that it would be better that the execution Court should not have continual suits brought before it whether a payment had been made or not. The plaintiff being advised by a lawyer, who thought Order 21, Rule 2 applied, made an application to the Court for a certificate.
2. The defendant resisted, and the application was eventually rejected. There is, therefore, no certified payment. There is no payment which any Court executing a decree could take into account, and the object with which it was done has failed. The matter is a little complicated in its legal aspect by the decision of our learned brothers in the case of Sital Singh v. Baijnath Prasad A.I.R. 1922 All. 383, where it was held that where there is a mortgage-decree, a payment of this kind made after the preliminary decree and before the final decree should be brought into account when the final decree is passed. We do not dissent from that ruling, or see why anybody should do so. They do not suggest that if this is not done, money, which admittedly belongs to the mortgagor, becomes the money of the mortgagee. That would be to turn it into a gift, and people do not make gifts in that way, and the Courts do not compel-people to make gifts against their will. The authorities cited by the learned Judge of the Court below, which are very old and which do not appear to have been questioned, show clearly that, in spite of there being another remedy, namely by a certified payment, if that falls to the ground, the plaintiff does not lose his right to the money. We should sum it up according to the broad principles of common law in this way. The payment was made under the instructions of the plaintiff for a particular purpose. Owing to the conduct of the defendant, to whom the payment was made, that purpose has failed. He declined to accept it on the terms on which it was offered to him. There has, therefore, been a total failure of consideration, and in accordance with the language of the old pleaders, the money is money in the hands of the defendant received by him to the use of the plaintiff, or in other words it is contra acquum et bonum that he should retain it. This is a cause of action as old as the hills and is really what the plaintiff was asserting. The decision is obviously right and the appeal must be dismissed with costs.