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Judgment
In Bayya Sao Narasingha Mahapatro ILR (1811) Mad 209 it was held that a deposit u/s 83 of the Transfer of Property Act was invalid if made
in one court after the institution of a suit by the mortgagee'' in another court, and the judges who decided that case were of opinion that the same
principle would apply in the case of such a deposit in the court where the suit had been instituted and that the deposit should be made under Order
24 of the Code of Civil Procedure. We respectfully agree with the reasoning in that case and can see no reason for making any exception in favour
of allowing a mortgagor to deposit the money before he recevies notice of the suit but after its institution.
When once a suit has been instituted the amount due on the mortgage cannot be ascertained until the decree is passed providing for interest,
costs, etc., for, we think that costs must also be included in the amount remaining due on the mortgage within the meaning of Section 83 of the
Transfer of Property Act and we are supported in this view by the decision of this Court in Kamalamma v. Komandur Narasimha Charlu ILR
(1907) Mad. 464 which interpreted similar words in the repealed Section 90, to include costs, This is an additional argument in favour of holding
that a deposit u/s 83 of the Transfer of Property Act is invalid if made after institution of a suit by the mortgagee. Even if such a deposit could be
made the amount deposited did not include costs and consequently there was no deposit of the amount due on the mortgage, which would be
effectual to stop the running of interest.
The effect of the deposit on the running of interest has been the only point argued in this second appeal which must be dismissed with costs.