1. The plaintiff in the suit executed a usufructuary mortgage in favour of the defendant for Rs. 300 of which he only received Rs. 50 and he has instituted this suit to recover the balance of Rs. 250 on the basis of the mortgage. The question is whether this is a suit, for specific performance. The rulings of this Court in Anakaran Kasmi v. Saidamadath Avulla(1) and of the Calcutta High Court in Shaik Galim v. Sadarijan Bibi(2) make it clear that this is a suit for specific performance, that is to say, a suit to enforce an agreement to lend money on a mortgage, and such a suit has been held not to lie.
2. This is the law in England and has been followed in this country. The suit will not lie at all and no question of jurisdiction then arises. It is clear however that a suit for specific performance can only be instituted on the original side and not on the Small Cause side. The reference will be answered accordingly.
S.N/R.K
3. Reference answered.