Judgement

Appeal (No. 86 of 1933) from decrees of the High Court (March 8 and November 28, 1932).

The facts appear from the judgment of the Judicial Committee.

1935. May 2. De Gruyther K.C. and Krishna Menon for the appellants. The matter compromised was collateral to the suit. Advocates of High Courts have the same authority to compromise a suit as counsel in England Sourendra Nath Mitra v. Tarubala Dasi. (( 1930) L. R. 57 I. A. 133.) The authority is limited to issues in the action and matters involved in the suit and does not extend to collateral matters Swinfen v. Lord Chelmsford. (( 1860) 5 H. & N. 890 ; 29 L. J. Ex. 382.)

[Reference was also made to Shepherd v. Robinson ([ 1919] 1 K. B. 474.), Neale v. Gordon Lennox ([ 1902] A. C. 465.), Thomas v. Hewes ((1834) 2 Cr. & M. 519 ; 149 E.

R. 866.), Prestwich v. Poley (( 1865) 18 C. B. (N. S.) 806; 144 E. R. 662.), and Johurmull Bhutra v. Kedarnath Bhutra. (( 1927) I. L. R. 55 Cal. 113, 121.)] The respondents did not appear.

8 Law Rep. 62 Ind. App. 196 ( 1934- 1935) Sheonandan Prasad Singh V. Hakim Abdul Fateh Mohammad Reza 79

May 21. The judgment of their Lordships was delivered by

LORD ATKIN. This is an appeal from the High Court of Patna and raises a question as to the validity of an alleged compromise on appeal of a suit in which the present appellants were plaintiffs and the respondents, who were not represented before the Board, were defendants. It is unnecessary to go into the details of the case. The relevant facts appear to be that before the transaction in question the appellants were owners of an 8 annas share in the mauza Alapur and the second defendant Imdad Ali owned a 2 annas share in the same mauza. By registered deeds dated July 12 and October 27, 1921, the second defendant conveyed a 2 annas share in the mauza to the plaintiffs for a total consideration of Rs. 10,896. The plaintiffs subsequently discovered that on June 25, 1921, the second defendant had executed a mortgage in favour of defendant No. 1 of the whole of his interest for a loan of Rs. 2500. There was some dispute as to the registration of this mortgage but it was finally registered on July 29, 1922. On October 2, 1926, the plaintiffs commenced the present suit against the two defendants, alleging that the mortgage was collusive and fraudulent and its registration invalid and asking for a declaration that their interests in the property were not affected by the mortgage. The first defendant traversed the allegations against the mortgage and set up that the sales to the plaintiffs were collusive and fraudulent ; the second defendant alleged that the mortgage was obtained by fraud of the first defendant and also alleged that the sales to the plaintiffs were collusive and fraudulent.

The trial judge, the Subordinate Judge at Monghyr, decided both issues in favour of the plaintiffs, i.e., that the sale deeds were good and the mortgage was bad. Both defendants appealed to the High Court at Patna. Though the notice of appeal challenges the findings of the judge on both points it would appear that there was no substantial attack in the High Court on the plaintiffs’ title. As far as the first defendant was concerned it was obvious that his mortgage if good was prior in date to the sale to the plaintiffs ; as to the second defendant the judges of the High Court had no difficulty in affirming the decision of the trial judge as to the plaintiffs title, saying that counsel had adduced no reason for differing from it.

The question in the present appeal arises as between the plaintiffs and the first defendant the mortgagee. It appears that at the trial the mortgagee had offered to buy the plaintiffs interest in the mortgaged property for Rs. 20,000, but this had been refused by the plaintiffs. On the appeal, the plaintiffs had sent their karpardaz as their representative to attend the appeal. Their counsel were Mr. Mullick and Mr. Roy. The mortgagee was himself present at the hearing; his leading counsel was M