Lord Tomlin.-

This is an appeal in two consolidated suits (Nos. 1136 and 1138 of 1920) brought by the assignor of the appellant against the respondent. The consolidated suits were tried before Chotzner, J., in the High Court of Judicature at Fort William in Bengal, Original Civil Jurisdiction, with the result that a decree in favour of the plaintiff was made on 24th January 1927. The respondent appealed, and on 16th January 1928, the High Court Civil Appellate Jurisdiction reversed Chotzner, J., and dismissed the consolidated suits. The appellant thereupon appealed to His Majesty in Council. The story of the transactions out of which the suits arise is somewhat intricate, but for the present purpose is sufficiently stated in what follows.

One Pity owed the appellant money and in March 1910, the appellant obtained a decree against Pity for Rs. 1,40,000. Pity was the owner of property in Wellesley Street, Calcutta. An arrangement was entered into and carried out between Pity, the appellant and the respondent to the following effect. The appellant borrowed from the Bank of Bengal Rs. 1,50,000. To enable the appellant to obtain this loan the respondent for a one per cent commission, guaranteed the loan to the Bank. The appellant drew a promissory note for the amount borrowed from the Bank in favour of the respondent, who endorsed it over to the Bank. Out of the money so borrowed the appellant lent to Pity the amount required to enable the latter to discharge his indebtedness to the appellant. Pity accordingly paid his debt to the appellant. At the same time Pity deposited with the appellant and the respondent the title deeds of the Wellesley Street property to secure the amount lent to him by the appellant.

It is not suggested that as between the appellant and the respondent the latter had any interest in Pity's mortgage beyond his right to be secured thereout against his liability as guarantor to the Bank for the appellant's debt.

On 9th August 1910, the appellant and respondent launched a suit (No. 839 of 1910) against Pity to enforce the mortgage. On 27th November 1910, a final decree for sale was made in the suit, both the appellant and the respondent being given liberty to bid. Nothing further was done for some years. On 5th August 1914, the respondent paid to the Bank the sum of Rs. 31,350-12-5 for interest on the appellant's debt to the Bank, and also from time to time until the date of the sale next to be mentioned, under an authority from Pity, collected the rents of the Wellesley Street property, and paid them to the

Bank on account of the interest due on the appellant's debt to the Bank.

On 29th January 1916, the Wellesley Street property was put up for sale under the decree of 27th November 1910, and the respondent, under the liberty reserved to him by the decree, bid for and was declared the purchaser of the property; the purchase price was Rs. 1,25,000 a sum less than the total amount owing under the decree. The respondent paid to the Registrar a deposit of Rs. 31,250 out of his own moneys.

Apart from the debt to the Bank there was at this time another account open between the appellant and the respondent upon which money was owing to the respondent. To secure this account the appellant had deposited certain jewellery with the respondent. Differences arose between the appellant and respondent in connexion with the transactions which have been described, and one Mitter, a mutual friend of both parties, intervened to compose them. Mitter's story, which was accepted by the trial Judge, and is not questioned by the High Court, is that on 12th July 1917, a verbal agreement was made between the respondent and Mitter who in this regard acted as agent for the appellant.

The first part of the agreement was to the following effect, namely:

(1) That the amount due to the respondent in respect of the account secured by the deposit of jewellery was agreed as Rs. 31,000, of which Rs. 27,000 was to be paid at once and the balance of Rs. 4,0