1. We think that both the lower Courts are wrong in this case for the simple reason that they have found that the defendant did not carry out the agreement he made with his creditor for defraying the mortgage-debt. Such an agreement could not be enforced as a contract before it was completed by payment of all the instalments, for the plaintiff cannot exercise the option under Section 63 of the Contract Act of dispensing with or remitting in part the performance of the promise made to him, nor can he accept instead of it the satisfaction which he thought fit to agree to until that satisfaction has been completely paid to him. It was originally sought to be argued that the plaintiff could not accept by anticipation any satisfaction which he thought fit. We are unable to agree with this contention; but we certainly cannot deny the plaintiff's right to sue on his contract of mortgage which could not be varied by the agreement he made to take part satisfaction; for until satisfaction was made and the plaintiff had agreed to remit the balance, the original contract of mortgage remained intact. This was very clearly pointed out in the case of James v. David 5 T.R. 141 so long ago as 1793 when Lord Kenyon said that the agreement disclosed in the plea is not a conclusive answer to the action, but as no satisfaction is pleaded, the plaintiff is entitled to judgment. In this case, the satisfaction was pleaded, but as has been found by both the Courts, the satisfaction pleaded has not been proved, and 30 rupees was still unpaid. The agreement, therefore, never became completed and the plaintiff cannot be said to have remitted any portion of the consideration.
2. Under these circumstances, he is entitled to a mortgage-decree for whatever is still due to him as principal and interest upon the mortgage. It will be left to the lower Court to take an account in the usual way. It is impossible for us to say whether the plaintiff has given credit in his plaint for Rs. 120, which was paid to him under the agreement; whether this is included in the Rs. 210, which he admits he has paid out of the interest, or whether it is not, is a matter for the lower Court when taking the accounts. There will be the usual mortgage decree with the usual term of six months for payment from the date when the lower Court decides the account. If the mortgagor do not pay the amount so found within six months of the decision by the lower Court, the mortgage property will be sold.
3. The plaintiff is entitled to his costs in this appeal. The parties will bear their own costs in the lower Courts as this point does not appear to have been clearly raised there.