Siddiqa Begum vs Mirza Hussaini Beg and another

Misra, C.J.—We had to take considerable pains in ascertaining from the record the facts of the execution case which gives rise to this revision application because the judgment of the Court below is completely silent about them.

It would seem that in execution of a decree for Rs. 3,217-0-4 obtained by one Mirza Hussaini Beg from the Court of the Fourth Judge, City Civil Court, Hyderabad, on 30-4-1952, a house belonging to the judgment-debtor, Srimati Gowher-un-nissa Begum, which was the subject-matter of an encumbrance, was attached on 10-4-1952 and proclaimed for sale in due course. Before the sale could take place, Srimati Siddiqa Begum, the possessory mortgagee applied on 30-7-1952 praying that the attachment be lifted in order to safeguard her rights or at any rate the house be sold subject to her mortgage dues amounting to Rs. 2453-6-0. The learned Judge accepted the second prayer and ordered that her right be preserved and the sale be made subject to her encumbrance. Accordingly, the sale proclamation declared the existence of Srimati Siddiqa Begum''s mortgage specifying the sum of Rs. 2,453-6-0 as being due thereon. At the auction which took place on 5-10-1952 the house was knocked down to one Mohd. Shamsuddin for a sum of Rs. 300 only and the sale was confirmed subject as aforesaid in due course.

On the date of the sale Shamsuddin deposited 25 per cent, of the sale consideration and within a few days thereafter he not only paid into the Court the balance of the purchase money, but also the sum of Rs. 2,453/- representing the proclaimed mortgage dues for redemption of the mortgage. The deposit thus gave rise to two proceedings: one for delivery of symbolical possession of the auctioned property to the purchaser under O. 21, R. 95, Civil P. C., and the other for redemption of the mortgage through Court under S. 83, T. P. Act. On 21-4-1953, the Court, however, instead of handing over the sum of Rs. 2,453-6-0 to Srimati Siddiqa Begam, gave her only Rs. 2,000 and ordered her to deliver possession of the house to Shri Mohd. Shamsuddin. The balance of the mortgage sum amounting to Rs. 453-6-0 was kept in Court because of certain objections raised by the decree-holder regarding the mortgage amount due to Srimati Siddiqa Begum from the judgment-debtor.

It is obvious that the decree-holder, not being a party to the mortgage contract, had no right whatever to object to the sum due to the mortgagee from the mortgagor on a bond to which he was not a party and with which he had no concern. It is reasonably clear that the deposit of the mortgage money by the auction purchaser was in pursuance of S. 83, T. P. Act and the only persons who could be interested in the proceedings to which the deposit gave rise were the mortgagor and the mortgagee. The learned Judge had obviously no right to determine at that stage whether the sum which was deposited for redemption of the mortgage bond was or was not due, nor could any objection in that regard be entertained at the instance of the decree-holder. The Court below nevertheless proceeded to consider his objections on merits. It decided that the additional sum of Rs. 453, which the auction purchaser has deposited, was in fact not due to the mortgagee since the latter was not entitled to be paid anything more than the amount already received by her, Having come to this conclusion, the learned Judge ordered that the money be paid to Mirza Hussaini Beg towards the satisfaction of his decree. Dissatisfied with this decision, the mortgagee has come up to this Court by way of revision and, in our opinion, she is clearly entitled to succeed.

Section 83 of the T. P. Act provides that at any time after the principal money payable in respect of any mortgage has become due and before a suit for redemption of the mortgaged property is barred, the mortgagor or any person entitled to institute such suit any deposit in any Court in which he might have instituted such suit to the account of the mortgagee the amount remaining due on the mortgage. Upon the deposit of such money, the Court has to issue a notice of the deposit to the mortgagee and the latter is entitled to accept the money so deposited in full discharge of the mortgage. The section further provides that where the mortgagee is in possession of a mortgaged property the Court must before paying to him the amount so deposited, direct him to deliver possession of the property to the mortgagor and at the cost of the mortgagor either to retransfer the mortgaged property to the mortgagor or to such third person as the mortgagor may direct.

Ordinarily, a mortgagor has three remedies open to him against his mortgagee for redemption of his bond. He may either pay up the mortgage money to the mortgagee out of Court or tender the money as contemplated by S. 83 in Court or at his option institute a suit for redemption under S. 91, T. P. Act. Where a tender is made under S. 83 it is not for the Court to decide whether or not the mortgage money deposited is actually the amount due to the creditor. All that it has to do is to pay the amount tendered to the mortgagee alter the completion of the prescribed formalities. It has no power to divert either the whole or part of the deposit to any other use. The procedure followed by the learned Judge of the Court below was thus wholly unwarranted & misconceived. The mortgagee apparently accepted the deposit & upon her handing over the mortgage deed fully discharged, which we are informed that this has already been done, the money deposited in Court should have been handed over to her in full. We have no hesitation in holding that the decree-holder had no right to the sum of Rs. 453 which was not the proceeds of the execution sale.

We allow the revision application with costs, set aside the order dated 29-8-1953, and direct that the balance of the amount deposited in Court by the auction purchaser be made over to the mortgagee after obtaining refund of it, if necessary, from the decree-holder.