1. This is an application to revise a judgment of the Court of Small Causes under the following circumstances: The applicant obtained a document, said to be a sub-mortgage, from the respondent on the 3rd of August, 1923, for a consideration paid by him of Rs. 300. It appears that the respondent was in possession of certain plots of land as mortgage under a deed, dated the 10th August, 1918. The respondent said that he would pay interest till Jeth following the execution of the deed when the plaintiff would take possession of the property mortgaged. The applicant said in the plaint that he had neither been paid interest nor had he been put into possession of the property. He accordingly sued to recover his money with interest.
2. The respondent pleaded payment of the money which he had borrowed, and also urged that the contract was an illegal one and could not be enforced and the money could not be refunded.
3. The learned Judge of the Court of Small Causes held that the money borrowed had not been re-paid, but ha was of opinion that the mortgage was an illegal one and the money could hot be recovered.
4. In this Court it has been urged that the learned Judge has really mis-applied the law and there is nothing illegal in the transaction and there is no bar to the recovery of the money.
5. It appears that a Division Bench of two Judges of this Court in the case of Balgobind Bhagat v. Nagina Misir (1913) 35 All. 405, held that where a mortgagor was himself holding a mortgage of occupancy tenancy and purported to make a sub-mortgage of his right, he was doing nothing forbidden by law. This argument was actually put forward before the learned Judge of the Court below, but was not accepted by him. In view of the ruling of this Court, the transaction was not illegal. I may point out that the mortgagor was quite secure in his possession. He could not be ousted by his mortgagor, the occupancy tenant, without the tenant-paying up the money he had taken from his mortgagee. If the respondent had handed over such possession as he did have over the property mortgaged to him, the money advanced by the applicant, would have been quite secure to him.
6. In this view of the case, it is not necessary to consider several other oases, that were cited before me.
7. The learned Counsel for the respondent argued that the remedy of the applicant was whatever may have been provided for in the deed itself and not a suit for money. But I find in the plaint that the plaintiff did allege that not only he was not paid but that he was not put. into possession of the mortgaged property. Under Section 58 of the Transfer of Property Act, the mortgagor was bound to put the mortgagee into possession. The applicant, therefore, was entitled to receive back his money.
8. I allow the application, set aside the. decree of the Court below and decree the. claim of the applicant against the respondent with costs in this Court and in the Court below.