SHIAM LAL Vs. ABDUL SALAM

JUDGEMENT

(1.) This is an appeal against an order of remand made under the following circumstances: The respondent, Abdul Salam, executed a mortgage in favour of three persons, Hari Chand and others, and thereby hypothecated a third share in two shops and other properties on foot of a mortgage bond, dated 18 November 1920. He acquired the remaining two-thirds share in the two shops which we have mentioned, and, later, on 26 July 1924, he sold the two shops to the appellant Bhiam Lal, for a sum of Rs. 6,250. Abdul Salam left with the vendee out of the purchase money a sum of Rs. 3,107-2-0 to be paid to Hari Chand and others in, order that the mortgage of 1920 might be cleared off. Owing to certain circumstances, which we need not mention and which will be duly enquired into by the Court of first instance, Shiam Lal made no payment to the mortgagees. The mortgagees brought a suit for sale and obtained a decree on 3 January, 1929. This mortgage decree was partly based on a compromise. Shiam Lal agreed with the mortgagees that the latter, in consideration of a sum of Rs. 2,300 paid to them, would release from liability the two shops purchased by Shiam Lal. As the result of this compromise and payment, the money due to the mortgagees was reduced in amount and a decree for sale was passed against the remaining properties of Abdul Salam for the realization of a sum of Rs. 2,758-14-0. Thereupon, Abdul Salam brought the suit out of which this appeal has arisen to recover the sum of Rs. 2,758-14-0 with interest from 3 July 1929 (after the expiry of the six months time allowed for payment), in all for recovery of Rs. 2,779 from Shiam Lal.

(2.) The Court of first instance dismissed the suit having held that it was premature. The basis of the judgment was that so far the plaintiff has not paid the mortgagees; nor has his property been sold, and therefore the plaintiff had no cause of action to maintain the suit. The learned Subordinate Judge who hoard the appeal, was of a contrary opinion, and he set aside the decree of the Court of first instance and remanded the suit for trial on the merits.

(3.) In this Court the learned Counsel for the appellant has argued that the plaintiff has no cause of action, because he suffered so far, no actual damage.