A stranger to a contract cannot enforce it unless the case falls within one of the exceptions mentioned in Section 2 of the Contract Act, 1872.

Gurnam Singh, J.

1. This regular second appeal arises out of a suit for recovery of Rs. 975 plus interest. The suit was decreed by the trial Court. In appeal the decree was reversed and the suit was dismissed. The facts which gave rise to this litigation were as follows:-

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Jumma and others mortgaged (simple mortgage) 76 bighas of agricultural land for Rs. 3,500 with the plaintiffs. Some time later partition of the land took place. Out of the land falling to his share Jumma mortgaged with possession 25 bighas of land with defendants Kaka Singh and Dhanna Singh. Out of the mortgage money Rs. 875 were left with the defendants second mortgagees for payment to the plaintiffs. Defendants did not pay the money to the plaintiffs. The latter, therefore, instituted the present suit for the recovery of the money left by the mortgagor with the second mortgagees.

The suit was resisted by the defendants on the ground that there was no privity of contract between them and the plaintiffs arid the latter therefore were not competent to sue. The finding of the trial Court was in favour of the plaintiffs. It was reversed by the lower appellate Court and the suit was dismissed on the ground that the plaintiffs being strangers to the contract were not entitled to sue. Plaintiffs appeal.

2. Learned counsel for the appellants urges that the plaintiffs were entitled to a decree as the contract between Jumma the mortgagor and the defendants the mortgagees was for the benefit of the plaintiffs. They being beneficiaries were competent to enforce the trust. He further contends that at any rate on the principle of equity the plaintiffs were entitled to relief.

By now it is well settled that ordinarily a stranger to a consideration cannot take advantage of a contract even though it may be for his benefit. This rule is, however, subject to certain exceptions. One of the exceptions covers cases where a stranger holds the position of cestui que trust in relation to the obligee. In such a case he is entitled to sue order to enforce the trust. No objection can be taken that he is a stranger to the contract.

The question is whether in the facts and circumstances of this case any such trust is created. The answer obviously is in the negative. A stipulation by the mortgagee defendants in the mortgage deed to pay the mortgage money to the plaintiffs does not make the defendants trustees for the payment of money to the plaintiffs who were not party to the contract and thus cannot make the defendants personally liable for the discharge of the mortgage debt. In such a case there is no privity of contract for a right of action.

The contention of the learned counsel that in justice, equity and good conscience plaintiffs be given the relief claimed is equally devoid of force in the present case. Justice, equity and good conscience no doubt are rules of English Law. The Courts in this country only invoke the aid of these rules in cases where there is no specific provision of law applicable to the facts of a particular case.

But there are ample indications in Section 2 of the Contract Act to take the view that a stranger to the contract has no right of action to enforce it. Learned counsel for the appellants places great reliance on the well-known authority of the Calcutta High Court, Debnarayan Dutt v. Chunilal Ghose, ILR 41 Cal 137: (AIR 1914 Cal 129) (A) to support his contention:-

- "Where the transferee of a debtors liability has acknowledged his obligation to the creditor for the debt to be paid by him, under the provisions of the registered instrument conveying to him alt the movable and immovable properties of the original debtor, and the acknowledgment was communicated to the creditor and accepted by him:-- Held, first, that the arrangement between the creditor and the transferee did not amount to a novation within the meaning of Section 62 of the Contract Act; secondly, that the obligation undertaken by the transferee was for, and intended to be for, the