Defendants 4 and 5 are the appellants. The suit which has given rise to this second appeal was instituted by the first respondent in the Court of the District Munsiff of Guntur for recovering a sum of Rs. 800 with interest that has accrued thereon, on a mortgage executed in his favour by the first defendant and his two minor sons, the second and third defendants, on the 10th May, 1943, after declaring that the mortgage in favour of the fourth defendant is a sham and nominal transaction and that the plaintiff is entitled to be treated as the first mortgagee.

Defendants 1 to 3 executed a mortgage on 1st May, 1943, in favour of the fourth defendant which mortgage was assigned to the fifth defendant by the fourth defendant for consideration. As soon as the plaintiff came to know of the existence of the mortgage in favour of the fourth defendant, he instituted criminal proceedings against the first defendant under section 420, Indian Penal Code, alleging that the first defendant cheated him by not disclosing to him the existence of the first mortgage and thereby inducing him to part with a sum of Rs. 800. The criminal proceedings were thrown out on the ground that the complain