JUDGMENT

Nanavutty, J - This is an appeal by the plaintiff against the decree dated 31st July 1931 of the Subordinate Judge of Malihabad affirming the decree, dated 28th November 1930, of the Munsif, South Lucknow.

2. The facts of the case are briefly these: The plaintiff, Ram Lal, held a simple money decree against one Jwala Prasad for about Rs. 1,300. He put this decree into execution and attached a property known as Harsamalka Bagh belonging to the judgment-debtor. This property was subject to certain mortgages in favour of one Mahabir Prasad. The property was ordered to be sold subject to Rs. 9,642 due in respect of these mortgages. One Pearey Lal also held a money decree against the same judgment-debtor for more than double the amount of the plaintiff's decree. The execution Court made an order allowing Pearey Lal to share rateably in the sale proceeds of the property. The auction sale started on 12th September 1927, went on for several days and ultimately on 20th September the sale was closed in favour of the defendant on his final bid of Rupees Rs. 1,360. There were only two bidders on this date, namely, the plaintiff who bid Rs. 1,355, and the defendant who bid Rs. 1,360. After the sale had been confirmed, the defendant tendered the sum of Rs. 10,573-4-8 being Rs. 9,642 on account of principal and the interest thereon to Mahabir Prasad, the mortgagee. The latter refused to accept this amount and brought a suit to enforce his mortgages. It was held by this Court that Mahabir Prasad was not entitled to anything more than Rs. 9,642 plus interest on it. Mahabir Prasad then appealed to the Privy Council. The defendant thereupon made a compromise with Mahabir Prasad and paid him Rs. 7,000 more.

3. The plaintiff came into Court on the allegation that on 20th September 1927, the defendant approached the plaintiff and asked him not to raise the bids against him and that as a consideration for this he offered to pay off the prior mortgages and also to make good the whole amount due to the plaintiff under his decree. As a result the rateable distribution which had been ordered by the executing Court, the plaintiff received only Rs. 383-4-9 out of the sale proceeds. He therefore claimed from the defendant the difference between this amount and the amount due to him under the decree. He also claimed interest on this amount at the rate of Re. 1 per cent. per month.

4. The defendant pleaded in his defence that the plaintiff himself had approached him to purchase the property, that he represented to him that the charge of Mahabir Prasad amounted to Rs. 9,642 only, and that he had agreed to pay to the plaintiff the difference between the amount due to him under his decree and the amount which he might receive in rateable distribution on condition that he had to pay no more than Rs. 9,642 to the mortgagee. It was also averred that in any case the agreement set up by the plaintiff was illegal, fraudulent and opposed to public policy.

5. The learned Munsif found that the object of the agreement was to defeat the rights of the other creditors. As such it was fraudulent and involved injury to third persons and was therefore void and unenforceable. On appeal the learned Subordinate Judge has held that the object of the agreement was to deprive the rival decree-holder of his legitimate dues and to cause loss to the judgment-debtor. He has in the result held the agreement to be void on the ground of its being opposed to public policy.

6. The learned Counsel for the plaintiff-appellant has, in the first place, pointed out that the plaintiff had obtained the permission of the Court to bid at the auction sale. It is not disputed that this was so. Therefore on the authority of the decisions of their Lordships of the Judicial Committee in Mahabir Prashad Singh v. Macnaghten, (1889) 16 Cal 682 and Mahomed Meera Ravuther v. Savvasi Vijaya Raghunadha Gopalar, (1900) 23 Mad 227 it must be held that he was in the same position as any other purchaser sub