1. The plaintiff, who is the appellant before us, sued the two defendants on a mortgage deed admittedly executed by them. The first defendant was the plaintiff's gomosla for four years tip to Ashin 1318 B. Section The second defendant is the first defendant's brother The first defendant was alleged to have embezzled a sum of Rs. 400 belonging to the plaintiff and was criminally prosecuted under Section 408 of the Indian Penal Code. The finding of both the lower Courts is that the bond in suit was executed on an agreement on the part of the plaintiff to abandon the prosecution of defendant No 1. On this finding it has been held that the bond sued on is void under Section 23 of the Contract Act. So far as the second defendant, is concerned this decision has not been attacked in second appeal, But it is contended that the plaintiff can recover the sum of Rs. 400 from the first defendant since the first Court found that the amount for which the bond was executed was really due from the defendant No. 1. The plaintiff certainly cannot recover that amount treating this suit as a suit on the original debt. The plaint is rot so framed as to seek this relief as an alternative remedy and it would appear that, at the time the suit was instituted, a suit on the debt alone would be barred by limitation, nor can we accept the contention that the bond be far as the defendant No. 1 is concerned is a good bond for a lawful consideration. Our attention has been drawn to several decisions, but we do not think it necessary to refer to any other case than that of Nujebar Rahman v. Muktashed Husain 15 Ind. Cas, 259 : 16 C. W. N. 854 : 40 C. 113. There the facts, so far as the first defendant in this case is concerned, are very similar. The consideration of the bond having been found to be an agreement on the part of the plantiff to abandon the prosecution of defendant No. 1 in a non-compoundable criminal case the bond must, be void, even if part of the consideration of the bond was good in law.
2. The appeal fails and is dismissed with costs.