Dhanukhdhari Singh and Another vs Jethan Singh and Others

Agarwala, J.—The petitioner is a, mortgagor and the opposite party is the mortgagee. The mortgage was a usufructuary one. The mortgaged property consisted of some bakasht lands and some raiyati lands. The mortgagor deposited the amount due on the mortgage u/s 83, T.P. Act. Notice was served on the mortgagees who were four in number. On the date fixed for their appearance, 13th June, only three of them appeared. As the Court could not make over the amount deposited unless all the mortgagees appeared, the Court rightly took steps to satisfy itself that the notices had been served on all the mortgagees. The 24th June was fixed for proof of service.

On that day service of notices was proved. The Court then passed the following order: "The case is disposed of." It is quite clear from the circumstances that what the Court meant was that as the mortgagees had not accepted the deposit, the case was disposed of Subsequently the mortgagees applied to with-draw the deposit. The mortgagor objected that they were not entitled to withdraw it unless they were prepared to give him khas possession of the bakasht lands which were the subject-matter of the mortgage. To this the mortgagees replied that they never had khas possession of the bakasht lands. The Court called upon them to execute a reconveyance of the mortgaged property in favour of the mortgagor and this was done. The mortgagor objected to the deposit being made over to the mortgagees unless he should be given khas possession. His objection was overruled and against the order overruling the objection he has applied to this Court.

It is quite clear that up to 24th June there had been no acceptance of the money by the mortgagee and it remained the property of the mortgagor. The Court had disposed of the mortgagees'' application to withdraw the money on account of the absence of one of them. The money that was then in Court being the property of the, mortgagor should have been made over to him by the Court unless the mortgagor agreed that it should be considered as a fresh tender of the mortgage amount to the mortgagees. From the petitions filed by the parties it would appear that the mortgagor did consent to the amount that belonged to him and which was in Court being considered as a fresh tender of the mortgage dues.

But it was subject to a condition, namely, that he should be given khas possession of the bakasht lands. Section 83 does not contemplate a conditional deposit of the amount but even if the deposit be considered as valid, it cannot be treated as if the condition attached to it did not exist. The mortgagee was entitled to accept the money only subject to the condition but was not entitled to ignore the condition. In my Opinion, the Court below was wrong in deciding that the mortgagees are entitled to withdraw this money, for, it had already disposed of the matter on 24th June. The application is therefore allowed but there will be no order for costs.