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Issues Involved:
1. Whether the plaint discloses any cause of action. 2. Whether the suit was premature. Issue-Wise Detailed Analysis: 1. Whether the plaint discloses any cause of action: The defendant argued that the plaint did not disclose any cause of action as there was no averment that the plaintiff had suffered any actual loss. The defendant relied on Sections 124 and 125 of the Indian Contract Act, 1872, which define indemnity and the rights of the indemnity-holder. According to the defendant, the promisor promises to save the promisee from loss caused to him, not loss which may be caused. Therefore, until the mortgagee files a suit against the plaintiff and obtains a judgment which the plaintiff is compelled to satisfy, the plaintiff is not entitled to sue the defendant. The court, however, clarified that Sections 124 and 125 of the Indian Contract Act are not exhaustive of the law of indemnity. Section 124 deals with indemnity arising from the promisor's conduct, while Section 125 deals with the rights of the indemnity-holder when sued. The court held that the indemnity in this case arises because the plaintiff incurred liability at the defendant's request, making Section 124 inapplicable. The court further noted that the indemnity-holder has rights beyond those mentioned in Section 125. 2. Whether the suit was premature: The defendant cited two cases to support the argument that the suit was premature: - Shankar Nimbaji v. Laxman Supdu: The court held that under a contract of indemnity, the cause of action arises when the damage is suffered, making a suit brought before actual loss accrues premature. - Chand Bibi v. Santoshkumar Pal: The court held that as the plaintiffs had not yet paid anything in respect of the mortgage, the suit was premature. The court distinguished these cases from the present case, emphasizing that the indemnity-holder can maintain an action against the indemnifier if the liability is absolute. The court referred to the English common law and equity principles, which allow the indemnity-holder to sue if the liability has become absolute, even if no actual loss has been incurred yet. The court held that the plaintiff's liability under the personal covenant in the mortgage was absolute and unconditional, making the suit maintainable. Judgment: The court ordered the defendant to procure a release of the plaintiff from all liability under the deed of mortgage and further charge within three months. If the defendant fails to do so, he must pay into court the amount required to pay off the mortgage and further charge. The court also decreed that the plaintiff is entitled to the costs of the suit. The court did not specify the amount to be paid into court, allowing the parties liberty to apply under the decree in case of difficulty in working out this part of the order.
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