1. This appeal arisen out of a suit brought by the plaintiff-appellant for the recovery of Rs.9,500, principal and interest, on the following facts:
2. It appears that one Musammat Sona, the widow of Girdbari Lal, was in possession of her husband's estate after his death, consisting of certain shares in two villages sailed. Nagla Achal and Nagla Pachauni. On the 13th September 1888 she excreted a deed of mortgage in respect of the share in Nagla Achal in lien of Rs, 600 in favour of Sri Pal. She died in 1889. On the 21st July 1890 Megh Raj and Sant Lal, the reversioners of Girdhari Lal, executed a simple mortgage for Rs. 2,000 in favour of Ganga Ram. The property bypothesated in the said deed was the share in Nagla Pachauni. The mortgagors left Rs. 692 with Ganga Ram, the mortgagee, for payment to Sri Pal. On the 4th August 1909 Sri Pal sued to recover his mortgage-money. He brought a suit against Megh Raj and the heirs of Sant Lal, the latter having died. Banarsi Lal had, prior to the suit of Sri Pal, purohased the share of Girdhari Lai in Nagla Ashal. Ha died, however, prior to the institution of the suit of Sri Pal. Tota Ram and Sheo Prased, as his legal representatives, were impleaded as defendants by Sri Pal in his mortgage-suit. The purchasers contested the suit on the ground, among others, that the mortgage money claimed by Sri Pal had been left with Ganga Ran and Ganga Ram should have been made a party and should be made to pay. The contesting defendants did not say in to many words that Ganga Ram had paid off the mortgage but they implied by their pleas in their written statement that, probably, the money had been paid, On the 7th July 1910 a decree was passed in favour of Sri Pal. The contesting defendants preferred an appeal which was compromised on the 13th February, 1911. The decree of Sri Pal was satisfied. In 1914 Sheo Prasad sued the heirs of Ganga Ram for the recovery of Rs. 4,000 which he had paid in satisfaction of the decree of Sri Pal. The heirs of Ganga Ram pleaded payment to Sri Pal and their plea was successful. The claim of Sheo Prasad was dismissed on the 2nd August 1915. The appeal of Sheo Prasad was also unsuccessful, On the 17th June 1919 the suit out of whish this appeal has arisen was brought by Sheo Prasad for the recovery of Rs. 4,000, together with interest, on the allegation that Sri Pal and the heirs of Ganga Ram had colluded to defraud him and hence the money that he had to pay to Sri Pal should be refunded to him. The allegation of collusion was denied by Sri Pal as also the statement that the heirs of Ganga Ram had paid him any money due on his mortgage.
3. The learned Subordinate Judge decided against the plaintiff, holding that there was no proof to his satisfaction that Ganga Ram or his heirs had paid off the mortgage of Sri Pal prior to the institution of the suit of Sri Pal. He was also of opinion that no collusion had been made out in the case.
4. We think that, on the facts as stated above and in the absence of evidence in support of the alleged collusion, the suit of the plaintiff is not maintainable. It seems to us that the plaintiff has been the victim of circumstances and bad management of his case in the former litigation. The fact, however, remains that as the collusion alleged in the plaint has not been established the mortgage-decree of Sri Pal against the appellant cannot be ignored or set aside and relief granted to the plaintiff on the ground that Sri Pal brought a false suit and gave false evidence in support of his case. The view that we have taken is supported by the case of Janki Kuar v. Lachmi Narain 30 Ind. Cas. 789 : 37 A. 535 : 13 A. L. J. 753. The learned Vakil for the appellant has referred to the case of Tika Ran v. Daulat Ram 4 Ind. Cas, 596 : 32 A. 145 : 7 A. L. J. 74. The fasts of that case were quite different to those of the appeal before us. In that case it was held that if the non-service on the defendant is due to the fraudulent conduct of the plaintiff in the suit and others acting for him which has led to a decree against the defendant, such decree may be set aside on the ground of fraud. That, however, is a very different case to the one before us.
5. The appeal, therefore, fails and is dismissed with costs, including fees in this Court on the higher scale.