Horwill, J.
1. This was a suit on a mortgage. Defendants 1 to 9 are mortgagors or their descendants and defendants 10 and 11 are purchasers of the equity of redemption in execution of a small cause decree held by themselves. The suit was allowed and defendants 10 and 11 have appealed.
2. The principal contention in the lower Court - as well as in this Court - is that the suit mortgage was discharged by the execution of a contract of sale on the 8th October, 1933. The tenth defendant obtained his decree on 23rd June, 1933; but before he could attach the property in execution of his decree, the contract relied on by defendants 10 and 11 had been executed. It is not now denied that the plaintiff enjoyed the crop raised in fasli 1344. The attachment was on 17th February, 1934, and the tenth defendant took delivery of the land on 23rd November, 1935, while the crop presumably raised by the plaintiff's tenants was still on the ground. That crop was the subject of criminal litigation and, finally, the plaintiff succeeded in obtaining that also. The tenth defendant then filed proceedings under Section 145 of the Criminal Procedure Code and was maintained in his possession pending the result of civil litigation. That led the plaintiff to file the present suit, in which he says that he had intended to realise his mortgage debt by getting the defendants to sell the land to him and then executing a contract to that effect; but that as that contract had been made impossible of performance he had been compelled to bring this suit on his mortgage.
3. Defendants 10 and 11 cannot succeed on the issues raised. The case of defendants 10 and 11, as argued in this Court and in the Court below, is that the suit mortgage was discharged by the execution of the contract of 8th October, 1933. That case, however, was never definitely put forward in the written statement. The defendants obviously desired to defeat the plaintiff without committing themselves to the definite case that the contract was true. Defendants 10 and 11 began paragraph 3 of their written statement by saying:
Whatever be the truth or falsity in respect of the sale contract referred to in paragraph 6 of the plaint...as the plaintiff believes it to be true according to his contentions, he may take further steps according to law on the strength of that contract; but to file a suit on the deed of mortgage is opposed to law.
4. The rest of the paragraph then sets out particulars of the various admissions made by the plaintiff from time to time in the criminal proceedings above referred to. It is thus seen that the plea of the defendants in this paragraph is not so much a plea of discharge as a plea that the suit, as framed, is not maintainable.
5. Turning to the plaint itself, it is clear that the contention of defendants 10 and 11 that the suit, even as framed, is not maintainable is not correct. It is true the plaintiff in paragraph 6 of the plaint says that the plaintiff, with the object of purchasing lands as a discharge of the mortgage debt, obtained a contract of sale from defendants 1, 2, 3 and 7 and the other mortgagors and that the plaintiff took possession of the lands mentioned in the contract. In paragraph 7 he says:
The said petition under Section 145, Criminal Procedure Code, was decided in favour of the tenth defendant. Thus the said contract became infructuous and impossible of performance. By its terms and according to law the said contract became useless.
6. It is undoubtedly true, as has been pointed out in Krishnaswami Rao v. Srinivasa Desikan : (1936)71MLJ850 and Sura Reddi v. Rama Narasu : AIR1937Mad714 , an executory contract can amount to a discharge of a mortgage debt; but there is no presumption in law that it does so. Ordinarily, one would not expect a person to give up his rights under a mortgage until he had got something concrete in its place. However, the circumstances may be such as to show that the mortgagee intended even from the day of the execution of the contract to give up his rights under the mortgage. The mere recital in the plaint that the plaintiff had entered into a contract with the mortgagors and their descendants that the defendants should sell their property to the mortgagees is not tantamount to an admission that the mortgage is no longer in existence. We cannot therefore agree that on the plaint, as it stands, the suit is not maintainable.
7. On this question, therefore, the appellants have to fail; for the suit is maintainable as framed and these defendants have not set up a definite plea of discharge. The plaintiff is therefore entitled to a mortgage decree.
8. A minor question has been raised as to whether credit should be given to the appellants for certain crops that were enjoyed by the plaintiff. This plea was not raised in the written statement and we are not prepared to entertain it here.
9. Our attention has been drawn to a small mistake in the drafting of the decree by which the plaintiff is given liberty to proceed against defendants 10 and 11 not only for the costs of the suit, but for the balance of the mortgage amount which may remain after the property has been sold. This was clearly wrong and is not in accordance with the judgment. In so far as this is concerned, therefore, the appeal has to be allowed.
10. A petition (C.M.P. No. 201 of 1940) has been filed by the fourth respondent to have the decree debt scaled down. This petition will be sent for disposal to the lower Court and the decree here passed will be subject to the result of that application.
11. Except as above mentioned the appeal is dismissed with the costs of the plaintiff.