Rampini and Bodilly, JJ.
1. The question raised in this appeal is whether a plaintiff can sue on a mortgage bond for Rs. 10,000 entered into to secure future advances, when more than that sum had been realized by him privately. The Subordinate Judge held that he cannot.
2. Mr. Hill for the appellant contends that the Subordinate Judge is wrong. We have no doubt that this is so. The bond was given as security for sums advanced on a running account, and it was evidently intended that, when advances of the amount specified in the bond had been either wholly or partially paid off, it should continue as a security for fresh advances up to the limit specified. The advances made never at any time exceeded Rs. 10,000, but advances to the extent of more than four times that amount were made and from time to time paid off. The Subordinate Judge has held that this precludes the plaintiff from now suing on the bond, which had been stamped with a stamp of Rs. 50, which is sufficient to cover the sum of Rs. 10,000 only. He rests his decision on the terms of Sections 26 of the Stamp Act, I of 1879, which is to the effect that 'nothing shall be claimable under such instrument more than the highest amount or value for which the stamp actually used would have been a sufficient.' He contrasts the terms of this section with those of Section 14 of the Stamp Act XXXVI of 1860, which were to the effect: 'No larger sum shall be recoverable in any Court of Justice by reason of any deed, &c.;' We think, however, that the word 'claimable' in Section 26 of Act I of 1879 means 'claimable in a Court of Justice.' In any case' they do not mean that sums paid privately to the mortgagee without any dispute or necessity for the enforcement of the bond are to be taken into account when the plaintiff brings a suit on the bond for the enforcement of the mortgage security.
3. We decree this appeal with costs and remand the case to the lower Court for disposal on the merits.