JUDGMENT

Straight, J. - In order to render intelligible the conclusions at which I have arrived with regard to this appeal, it is of importance very narrowly to scan the terms of the plaint, and by the light of the previous litigation between the parties and the facts therein stated, to sea what precisely is the form of the suit brought by the plaintiff-respondent to which this appeal relates. The facts, as set out in the plaint, are as follows:

One Mewa Lal held a decree of the 7th December 1864, against three persons, viz., Bir Bhaddar Sewak Pande, Musammat Janki Pandain, and Sat Narain Sewak Pande, and in execution of that decree the zamindari properties of the judgment-debtors were advertized for sale to be held on the 20th November 1871. Two days before the advertized date Bir Bhaddar Sewak Pande, the first of the above-mentioned judgment-debtors, came to the plaintiff in the present suit, and borrowed from him a sum of Rs. 5,000, for the purpose, as he said, of discharging the decree of Mewa Lal, and as security for that advance, he made a hypothecation bond in favour of the plaintiff, charging his zamindari interest in six villages, promising to pay the amount in six months, and undertaking to pay interest at Re. 1-7 per cent, per mensem, or Rs. 15 per cent, per annum. On the 20th November 1871, the sale advertized in execution of the decree of Mewa Lai took place, and the six villages, his interest in which Bir Bhaddar had already mortgaged, were sold as the property of all the judgment-debtors. One of the villages was purchased by Mewa Lai for Rs. 8,500, and the other five villages, with which we are alone concerned in the present case, were purchased by Nandan Tiwari for Rs. 12,325. How Nandan Tiwari obtained the money was this. He had apparently got sufficient to pay the earnest-money required by law to be paid in the Court at the time of sale probably out of the Rs. 5,000 lent to Bir Bhaddar, but there remained a sum of Rs. 9,000, the balance which had to be paid into Court to satisfy the amount in full at which the villages had been bought. According to the statement of the plaintiff as now made in his plaint, "Nandan Tiwari was an agent, mukhtar, friend or well-wisher of Bir Bhaddar Sewak Pande, and after the aforesaid sale, at the request and desire of Bir Bhaddar Sewak Pande aforesaid, the plaintiff lent a further sum of Rs. 9,000, for the payment of the purchase-money, obtaining a hypothecation bond from Nandan Tivari aforesaid, in whose name the property had been purchased at auction. The rate of interest agreed upon was Re. 1-7 per cent., and the money was to be repaid within six months as shown by the registered bond dated 3rd December 1871, which is forthcoming. The plaintiff was assured that the money borrowed was taken on security of the property, and that the execution of the bond in the name of Nandan Tiwari was necessary as a matter of form.

2. With regard to this paragraph in the plaint it is clear that Nandan Tiwari was, upon the face of the proceedings, the purchaser; and it is further to be taken, because the document speaks for itself, viz., the document of the 3rd December 1871, that he was the obligor upon the face of that instrument in favour of the plaintiff, and that he was, as a purchaser of the five villages, hypothecating them to the plaintiff for the amount of the advance made to him. It must be further taken as a fact in the cause, because it is indisputable that the fact is so, that the plaintiff was well aware that though upon the face of it Nandan Tiwari was the agent for Bir Bhaddar in the transaction, Bir Bhaddar was the principal borrower, and that the transaction was conducted by Nandan Tiwari for and on his behalf as his agent. It appears that after the purchase by Nandan Tiwari, under the circumstances I have stated, one or two suits were brought by members of the family of Bir Bhaddar, who had not been parties to the decree of Mewa Lal, and they recovered from Nandan, the auction