1. In this suit certain property was mortgaged to the plaintiff by the defendants, under a kut-kobala, in the year 1869; and in that document the property was described as their own exclusive property which they had obtained by purchase. Subsequently, the plaintiff instituted foreclosure proceedings, and issued the usual notice to the mortgagors. After the year of grace had expired, he sued for the mortgaged property; but certain persons intervened, and he withdrew the suit with sanction to bring a new case. From the evidence on the record, which from the observations of the Judge who tried the case in the lower Court appears to have been believed by him, it appears that the mortgagors, on the representation of the mortgagee, said, that if a new suit wore brought for possession of the property, they would induce the recusant members of the joint family to which they belonged to confess judgment. This suit was accordingly brought, and those members of the family, instead of confessing judgment, opposed the claim; and the suit was dismissed both in regard to the entire properly and also in regard to the share of the mortgagors. Failing thus to follow the property, the plaintiff now sues for the return of the money which his father had lent, and for the costs in the suit which was dismissed. The general rule is laid down in Macpherson on Mortgages at page 233: 'Ordinarily the mortgagee cannot sue for the recovery of the money lent by him instead of for foreclosure and possession, except when good and sufficient cause is shown for his adopting such a course. And only something which, without any blame on his part, renders it impossible for the mortgagee to obtain possession will be considered to be good and sufficient cause.'
2. We concur with the lower Court in holding that the mortgagee is entitled to obtain his money.
3. Another point for consideration is, whether he is entitled to obtain the costs of the suit. It was decided, so long back as 1853, by the Sadr Dewany, where, in a foreclosure suit by a mortgagee, the suit is dismissed and he is made to pay the costs of the intervenor, that in a fresh suit he is entitled to those costs from the mortgagor and to his own costs in the suit. In the present case not only was the suit brought for the possession of. the property as mortgagee, but in addition it is clear that it was brought under the advice of the mortgagors themselves. We think, therefore, that the mortgagee is entitled to obtain the costs in that suit incurred by him and the costs he paid to the intervenor.
4. The appeal is dismissed with costs.