Das, J.:— I have arrived at the conclusion, though not without some hesitation, that the judgment of the lower appellate court must be upheld. It was argued strenuously before us that the facts in this case are different from the facts that were present in the case reported as Sukhdeo Das v. Mangal Chand. In that case the defendant Muni Lal who was the gomasta of the defendants had misappropriated a certain sum of money. He happened to be a relation of the plaintiffs and the plaintiffs agreed to set off the sum of Rs. 600 due by Muni Lal to the defendants against the claim which the plaintiffs had against the defendants. Subsequently the plaintiffs sued to enforce their claim against the defendants and the defendants claimed that they were entitled to have the sum of Rs. 600 set off against the claim of the plaintiffs. The plaintiffs maintained that the set-off could not be allowed as the consideration for the agreement was not to prosecute Muni Lal for an offence which was not compoundable. This contention did not find favour with the learned Judges who decided the case, Mr. Justice Chapman delivering the judgment in the case said as follows:—“Where the consideration for an agreement is a promise not to prosecute for an offence which is not compoundable the agreement is not enforcible by law but this limitation of freedom of contract should only be enforced where it is quite clear that the consideration for the agreement was such an illegal promise. When on a mere threat to prosecute, or on an apprehension that prosecution would take place, an agreement has been come to, this threat or apprehension is not sufficient to vitiate the agreement, the distinction between the motive for coming to an agreement and the actual consideration for the agreement must be kept carefully in view and this care must be particularly exercised in a case where there is a civil liability already existing which is discharged or remitted by the agreement.”
Now even if we apply these considerations to the present case, then how does the case stand? There was undoubtedly a civil liability due, not, it is true, on the part of defendant No. 1, but certainly on the part of defendant No. 2. In the case to which I have already referred, there was no liability on the part of the person who was sought to be made liable, and in my opinion no distinction can be drawn between the present case and the case of Sukhdeo Das v. Mangal Chand. The plaintiff was not primarily liable in the latter case and in the case before us Adhikanda was not primarily liable. Each of them made himself liable because there was undoubtedly a liability on the part of somebody else in whom they were interested. It may be that the motive for coming to the agreement was that prosecution may not be launched in the case, but as Mr. Justice Chapman says “the distinction between the motive for coming to an agreement and the actual consideration for the agreement must be kept carefully in view.”
On a careful consideration of the matter, I am unable to distinguish this case from the case upon which the respondents rely.
I must dismiss this appeal with costs.
Adami, J.:— I agree.
Appeal dismissed.