1. We are of opinion that this appeal must succeed. We do not say that the defence is without merits for reason which will appear in a moment--but we are quite clear that our brother ought not to have interfered with the decision, of the lower Court, because he had no jurisdiction to hear the appeal. It is possible that he felt that the plaintiff was entitled to sympathy, and that he stretched a point in his favour. He certainly does not give any strong reason why he overruled the preliminary objection. The point is really quite simple. The plaintiff and the defendant joined in a document, which was a mortgage, whereby certain property was hypothecated in consideration of a loan, and they described themselves as mortgagors. Prima facie they were joint mortgagors or co-mortgagors. But a description of that sort which may be due either to the man who writes the document, or to carelessness of the lawyer who does not think it necessary to go into detail, cannot alter the fact, and in this particular case in fact only one of them mortgaged his property, and the other transferred, hypothecated and mortgaged none, and, therefore, he did not become a mortgagor in any sense of the word, or within the definition of Section 58 of the Transfer of Property Act. He might, in certain cases, be prevented from denying it, which is what the law calls estoppel, so that for certain purposes he would become in the eyes of the law a mortgagor and be treated as such. He would only be treated as such by estoppel, which is an artificial principle of law, and it would not make him a mortgagor in fact when he was not one. But as against anybody who knew the facts, particularly his co-mortgagor, there could be no estoppel. No body knew the facts better than his co-debtor, the actual mortgagor. The plaintiff paid the debt, or discharged the greater part of the debt, and he now seeks contribution. The question is--the claim being under. Rs. 500--whether there is any second appeal. If it is a suit of a Small Cause Court nature, there is none. The only way in which the plaintiff can take it out of the category, of a suit of a Small Cause Court nature, is by bringing it within Article 42. But Article 42 applies to a suit by one of several joint mortgagors, and as we have pointed, out here, there were no joint mortgagors, but only one mortgagor. When the plaintiff, having lost his suit in the Court of the District Judge, appealed in second appeal to this Court, this objection, which we have just stated, was taken by the respondent. The learned Judge accurately set out the objection in his judgment. He dismissed it without giving any convincing reason being content to say that as they both joined in executing the document, he thought they could be brought within the words 'joint mortgagors.' We find ourselves unable to agree. Joint executants they certainly were, joint debtors they certainly were, joint participants in a mortgage transaction they certainly were, but there was only one mortgagor. The preliminary objection, therefore, before the learned
2. Judge ought to have prevailed, and we are of opinion that he was wrong in dismissing it. This is sufficient to dispose of this, appeal, but it does happen that the Court of first appeal, namely, the District Judge, definitely dismissed the claim on the ground that the plaintiff had failed to establish by proof the mortgage debt, or the right to contribution at all, and if that decision is right a matter which the High Court cannot consider it is clear that the defendant is right on the merits as well as on the technical objection. We must allow this appeal, overruling the learned Judge and giving effect to the technical objection and hold definitely that this was not a suit within Article 42. The appellant must have the costs here and below.