RAJAGOPALA AIYAR Vs. SHEIK DAVOOD ROWTHER

JUDGEMENT

(1.) THE plaintiff in the suit executed a usufructuary mortgage in favour of the defendant for Rs. 300 of which he received only Us. 50 and he has instituted this suit to recover the balance of Es. 250 on the basis of the mortgage. THE question is whether this is a suit for specific performance. THE rulings of this Court in Anantharam Kasmi v. Saidamadathulla I.L.R. 48 C. 59 and of the Calcutta High Court in Sheik Galim v. Sadarjan Bibi I.L.R. 2 M. 79 make it clear that this is a suit for specific performance, that is to say, a suit to enforce an agreement to lend money on a mortgage : and such a suit has been held not to lie. This is the law in England and has been followed in this country. THE suit will not lie at all and no question of jurisdiction then arises. It is clear, however, that a suit for specific performance can only be instituted on the original side and not on the Small Cause side. THE reference will be answered accordingly.