1. This is an appeal by the defendant against an order of remand. The suit was for the recovery of Bs. 650 as damages. The trial Court dismissed the suit on the ground that the defendant was not legally liable and did not try the remaining issues. The lower Appellate Court has reversed the finding of the trial Court on the preliminary point of the liability of the defendant and has remanded the case for the trial of the remaining issues.
2. On 13th September 1920, the plaintiff executed a simple mortgage in favour of three brothers, Gulzari Lal, Het Ram and Khan Chand hypothecating certain property. On 27th July 1923 the plaintiff executed another simple mortgage in favour of one Jugul Kishore, mortgaging those very properties. On 26th March 1928, the plaintiff, along with two other persons, sold the property belonging to him, which was covered by the earlier mortgage deeds to the defendant. The entire sale consideration was a sum of Rs. 6500. Out of this amount a sum of Rs. 200 was paid in cash to one of the executants other than the plaintiff and the rest of the sale consideration was left in the hands of the defendant purchaser to be paid to prior creditors and mortgagees of the vendors. These prior debts which had to be paid by the defendant purchaser were all specified. Among them was a sum of Rs. 604 which the plaintiff had left in the hands of the defendant for payment to his mortgagee Jugul Kishore, in full satisfaction of the mortgage deed of 27th July 1923. It is admitted that the defendant-appellant never made this payment. The result was that Jugul Kishore brought a suit on his mortgage and obtained a decree for sale for the recovery of Rs. 1138. In due course, a final decree was passed and execution proceedings were taken. In the proclamation of sale it was stated that there was an encumbrance on the property under a simple mortgage dated 13th September 1920 in favour of Gulzari Lal, Het Ram and Khan Chand. Ultimately the mortgaged property was sold and was purchased by Jugul Kishore himself for Rs. 600. Thus a balance of Rs. 538 odd was still left outstanding Tinder the decree. Jugul Kishore's suit having been brought within six years from the time when the mortgage money under his deed of 1923 had become due, he applied for the passing of a personal decree against the present plaintiff-respondent, Mohammad Samiulliih Khan, in accordance with the provisions of Order 34, Rule 6, Civil P.C., and such a decree was passed on 10th December 1932 for Rs. 550-15-0. The sum of money claimed in the present suit re-presents that amount of the decree under Order 34, Rule 6 and some interest. The plaintiff's ease was that the defendant-appellant had been guilty of a breach of contract in not paying the sum of Rs. 604 to Jugul Kishore which he had undertaken to do and it was in consequence of that breach of contract on the part of the defendant-appellant that Jugul Kishore filed his suit and ultimately obtained a personal decree against the plaintiff. One of the pleas raised by the defendant-appellant was that the plaintiff had failed at the time of the sale of 26th March 1928 to disclose the incumbrance under the mortgage deed of 13th September 1920 in favour of Gulzari Lal and his brothers and that it was in consequence of the existence of this incumbrance that the property fetched a low price at the auction sale held in execution of Jugul Kishore's decree. The defendant-appellant asserted that, but for this incumbrance in favour of Gulzari Lal and his brothers, the sale in execution of Jugul Kishore's decree would have fetched more than the amount which was due to Jugul Kishore and that there would have been no occasion for the passing of a personal decree. The plaintiff's reply to this contention was that at the time of the sale of 26th March 1928 the ineumbrance under the deed of 13th September 1920 had been paid off and did not twist. It has been found by the lower Appellate Court as a fact that this allegation of the plaintiff is correct and that the mortgage money due to Gulzari Lal and his brother under the deed dated 13th September '1920 had been paid off by the plaintiff on 18th November 1921.
3. In view of this finding, which is binding on us, the contention raised by the defendant-appellant mentioned above falls to the ground. The other facts as narrated above were not denied, but various questions of law were raised by the defendant and it was urged that he was not liable in law for the plaintiff's claim. The only contention that has been raised before us is one of estoppel. It is argued that the present plaintiff-respondent, Mohammad Samiullah Khan, was a defendant along with the present defendant-appellant, Mohammad Qudrat Ullah Khan in the suit brought by Jugul Kishore and that it was Samiullah Khan's duty in law to see to it that the particulars entered in the sale proclamation issued on Jugul Kishore's application for execution were correct. It is urged that as Samiullah Khan had failed to do so, he is now estopped from asserting that the mortgage deed of 13th September 1920 had been paid off and that the incumbrance created under it was not in existence on 26th March 1928 when the sale deed in. question was executed. We find it difficult to appreciate the exact line of reasoning by which Samiullah Khan is said to be estopped from showing in the present suit that the allegation of the defendant-appellant to the effect that an incumbrance existed which Samiullah Khan had failed to disclose is untrue. It may also be pointed out. that when Jugul Kishore brought his suit for sale on foot of the mortgage of 27th; July 1923, the defendant-appellant was the owner of the property by virtue of the sale-deed of 26th March 1928 and as such was the person who was really interested in that suit and in all the subsequent proceedings. Samiullah Khan after having sold the property had no further interest left. If the defendant-appellant had not been negligent, he could easily have discovered by an inspection of the registration records that the mortgage of 13th September 1920 no longer existed because the mortgagees, Gulzari Lal, Het Ram and Khan Chand had, on receiving the amount due to them, executed a receipt in favour of Samiullah Khan and had registered it on 18th November 1921. In our opinion, no question of estoppel arises in this case. The defendant-appellant has admittedly been guilty of a breach of contract, having failed to pay to Jugul Kishore the sum of Rs. 604 which had been left in his hands for the purpose and the plaintiff-respondent has clearly been damnified thereby.
4. We have come to the conclusion that the decision of the lower Appellate Court that the suit is maintainable and that the defendant is liable is perfectly correct. The order of the Court below remanding the case to the trial Court for the decision of issues 2 and 3 is also correct and is maintained. We direct however that if and when a decree is passed in favour of the plaintiff, the defendant should be ordered to deposit the amount decreed in Court for the satisfaction of the decree obtained by Jugul Kishore under Order 34, Rule 6, Civil P.C., against Samiullah Khan, if that decree is found to be still outstanding. If, on the other hand, it is found that the decree has been satisfied in the meantime by the plaintiff, Mohammad Samiullah Khan, then the defendant should be ordered to pay to the plaintiff the sum of money which the latter had to pay to Jugul Kishore. For the reason given above, we dismiss this appeal with costs.