Mt. Ratna Koer vs Mt. Nanhaki and Others

Mullick, J.—On the 13th June 1922 the mortgagor deposited a sum of Rs. 2,825 in the Court of the Subordinate Judge of Arrah by way of tender in satisfaction or discharge of two mortgage debts due to the opposite party mortgagees. On the 29th June the mortgagees filed a petition objecting to the tender on various grounds and the Subordinate Judge instead of disposing of the petition summarily allowed the parties time to compromise the case. Finally there was no compromise and on the 29th July 1922 the Subordinate Judge made the following order: "Hazri on behalf of both parties filed. Ordered that the case be disposed of."

On the face of it the order does not seem to be very clear, but having regard to the papers on the record it seems that what the Subordinate Judge decided was that as the tender was not accepted the case was disposed of, and the mortgagor was entitled to withdraw his money. On the 29th November 1922 the mortgagees apprehending that the mortgagor was about to carry out the order of the Court filed an application that a criminal case of theft in connection with mortgage deeds was pending against the mortgagor and praying that the money might not be paid over to the mortgagor till the disposal of that case.

On the 4th December, 1922 the mortgagor applied for the return of the money but the Subordinate Judge directed that the payment should be withheld till the disposal of the criminal case. On the 11th April 1923 the case was heard in the presence of both sides, the criminal case by that time having been disposed of and having ended in the acquittal of the mortgagor. On that day the mortgagees finding that the money was about to be returned to the mortgagor suddenly changed their mind and intimated their willingness to accept the tender in full discharge of their dues. The Subordinate Judge allowed the prayer and directed that the money should be paid to the mortgagees upon their executing a security bond to refund the money. Here again it is not at all clear why the Subordinate Judge allowed the mortgagees to reconsider their decision after the tender had been once refused. In my opinion the Subordinate Judge had no power to direct the money to be paid to the mortgagees when the tender was no longer open. After the disposal of the case on the 29th July 1922 there was no other tender, and the money was the mortgagor''s money and the mortgagor was entitled to withdraw it at her own pleasure. Being therefore of opinion that there was no tender outstanding the order directing the money to be paid to the mortgagees seems to have been made without jurisdiction.

It is also not clear how a security bond was taken, for Section 80 of the Transfer of Property Act does not authorize the Court to take any security bond from any party.

The result is that the order of the Subordinate Judge will be set aside and the mortgagor will be entitled to withdraw the money and the mortgagees must pursue such remedy as they may think fit for the recovery of their mortgage debt.

The application is allowed with costs: hearing fee one gold mohur.

Bucknill, J.

I agree.