Law:

Section:

Mortgagor and mortgagee----------Mortgage amount left by mort­gagor with mortgagee for payment to third party-Mortgagor not creditor of mortgagee, as mortgagee cannot be compelled to make payment, however mortgagee can be liable for damages­--Such amount is not attachable in execution of decree. If a mortgagor leaves some mortgage amount with the mortgagee for payment to a third party the mortgagor cannot be considered to be a creditor of the mortgagee for that amount and the mortgagee cannot be compelled to make payment as it is no more than. an agreement to lend money and of such agreements no specific performance can be claimed. It is settled law that if a mortgagee who keeps a part of the mortgage amount for payment to the mortgagor at a later date refuses to pay the amount he cannot be compelled to make payment though he may be liable for damages and the mortgage already entered into will hold good only for the amount actually paid by the mortgagee. The money was not a debt due to the mortgagors jointly or to one or more of them and could not, therefore, have been attached in execution of a decree against all or any of them. The attachment being unwarranted the subsequent payment, if any, cannot be deemed to be valid and binding on the mortgagors. There is also another way of looking at the matter. The money was left with the mortgagee by the mortgagors for a specific purpose and if the mortgagee wants to make the mortgagors or their property liable for that money without paying it to them he must prove that he had carried out the directions of the mortgagors contained in the mortgage-deed dated 14th March, 1933. Sewa Singh v. Milkha Singh I L R (1936) 17 Lah. 270 ; Sohan Lal v. Labh Singh I L R (1943) Lah. 746 ; Sheopati Singh v. Jagdevo Singh I L 8 (1930) 52 All. 761 ; Sardar Khan v. Ram Lal Barkat Shah A I R (1936) Lah. 196 ; Khunni Lal v. Bankey Lal A I R (1934) All. 449 ; Bhairon Awasti v. Lalta Misir A I R 1934 All. 954 and Phul Chand v. Chand Mal I L R 1908 30 All. 252 referred to. ORDER KAYANI, J.-The four defendants, namely, Khushi Muhammad, Ghulam Rasul, Daswandhi and Nut Din, were joint owners of certain land in village Kot Chadu of Daska Tehsil…

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