AGHORE NATH SHAHA Vs. NATABAR BAIRAGI

JUDGEMENT

(1.) This appeal must be dismissed. The finding of the learned Judge of the lower Appellate Court is that the plaintiff s mortgage is an usufructuary-mortgage. That is also what the plaintiff himself says in his plaint and from his statement of the mortgage in his plaint it is quite clear that it is an usufructuary mortgage If it is an usufructuary mortgage, there is no remedy either by foreclosure or by sale, and the plaintiff having brought this suit, he has been given a simple money decree for the amount due on his mortgage. That seems to be the only relief that he can get in this suit.

(2.) The other point is that the plaintiff ought to be permitted to withdraw from the present suit with liberty to bring a fresh suit for possession of the mortgaged property. One cannot say generally what ought to be the Rule in such a case. All that one can say is whether or not the case under consideration is a proper case in which to exercise that discretion. In this case, we ought not to grant the prayer because the plaintiff deliberately selected the gentle man who conducted this litigation in the. Courts below. He instituted the suit in this way. The two defendants met him on the case put forward. He cannot now, when he has deliberately taken this course, be permitted to get out of the whole thing and start the litigation afresh. I think the plaintiff ought, under the circumstances, to get a decree for money against his mortgagor. He can then enforce his decree as he thinks best. The present appeal fails and must be dismissed with costs. Newbould, J.

(3.) I agree.