Gomaji vs Subbarayappa And Anr. on 3 November, 1891

JUDGMENT

1. In our opinion, the judgment of the District Judge is clearly wrong- By the terms of the instrument sued on, the defendants covenanted to pay the money, and, at the same time, the plaintiff was empowered to sell the property and realize the amount. Had the document been registered, it would have been competent to the plaintiff either to proceed on the covenant or to sue for sale of the mortgaged property. The decision in Mattongeney Dossee v. Ramnarain Sadkhan I.L.R., 4 Cal., 83 is distinguishable.

2. We must reverse the decree of the District Judge and remand the appeal for disposal on the merits. The respondents must pay the costs of this appeal. Other costs to be provided for in the revised decree.