Patna High Court
Gupteswar Missir And Anr. vs Radha Mohan Missir And Ors. on 6 January, 1937
Equivalent citations: 170IND. CAS.99, AIR 1937 PATNA 253
ORDER Rowland, J.
1. This revision application is a sequel to a lengtny litigation, the object of which was to redeem certain property held in usufructuary mortgage by Bamdeo Missir, Jhakar Sah and Kamala. Prasad Misra. The original principal of the mortgage was Rs. 300, and the plaintiffs Iswar Dutt and his sons Kamta Prasad Missir and Gupteswar Missir tendered this amount to the mortgagees who, however, claimed that a larger sum was due. A. deposit was made under Section 83, Transfer of Property Act, of the sum of Rs. 300 on June 1, 1927. Notice was served, but the mortgagees did not agree to accept the amount tendered in full satisfaction of their mortgage debt; so that proceeding was in-fructuous. Iswar Dutt then instituted a title suit claiming redemption which on his death was prosecuted by his sons in his place. The suit was instituted in 1927 and the litigation continued through appeal and second appeal to the High Court. Daring its pendency Radha Mohan Misir and Bansi-dhar Missir, on March 19, 1934, purchased in execution of a money decree the right, title and interest of Kamta Prasad and Gupteswar in the mortgaged property and thereafter were permitted to be added as appellants in the second appeal then pending in the High Court. The final decision was that the plaintiffs were entitled to redeem on payment of Rs. 300. In the meantime Kamta Prasad and Gupteswar had entered into two simple mortgage transactions in 1929 and 1933, respectively, by which they had mortgaged this property to Ramdahin Missir and others who in July 1936 asked to be permitted to redeem the mortgage of the defendants; by depositing Rs. 300. The Court allowed them to make a deposit provisionally and the money so deposited by them is still in Court; but on August 11, 1936, the Court after hearing the Pleaders, ordered that the defendants mortgagees should take Rs. 300 which had been deposited by Iswar Dutt under Section 83 and not Rs. 300 which had been deposited by Ramdahin and others. Against this order Kamta Prasad and Gupteswar objected that Rs. 300, deposited under Section 83 was their money and they were entitled to a refund of it and that the redemption money of Rs. 300 was to be paid by the persons to whom the interest in the mortgaged property had passed. The Court rejected this contention and directed the mortgagees to draw the Rs. 300 which had been deposited under Section 83. This order along with that of August 11, 1936, is the subject-matter of the present application in revision.
2. It is contended that when Radha Mohan and others bought the equity of redemption in 1934, they bought the right to pay the mortgage and get the property and not the right to get the property without paying the mortgage. On the other hand, Mr. Mitter for the opposite party contends that by the auction sale of March 19. 1934. there passed to his clients whatever rights Kamta Prasad and Gupteswar had both in the mortgaged property and in the suit. The petitioners further object to the order of the Munsif in so far as it rejects the prayer for payment to Kamta Prasad and Gupteswar of the costs incurred by them up to September 14, 1934, when the purchasers of the equity of redemption got themselves added as appellants in the record of the High Court. To this contention again Mr. Mitter's answer is that his clients purchased in March 1934 all the interests of Kamta Prasad and Gupteswar in the litigation as well as in the property.
3. I shall take first the question regarding Rs. 300. The implication of the view taken by the Court below and supported by Mr. Mitter is that this Rs. 300 has already been absorbed in reduction of the mortgage debt and is no longer a separate asset distinct from the mortgaged property. There is difficulty, however, in holding that this is the effect of the making of a deposit under Section 83, Transfer of Property Act. No doubt if the mortgagee accepts the money deposited or tendered in full satisfaction, the result follows that the mortgage is extinguished; but if he does not do so, then it is clear from Section 84 that the mortgagor who has made a deposit can subsequently withdraw the money deposited or any part thereof. That makes it clear that by the mere fact of making a tender or a deposit the money has not ceased to be property of the mortgagor and has not become merged in the mortgaged property in any way. This is fully in agreement with the view taken in Ratna Kuer v. Nanhaki AIR 1924 Pat. 41 : 73 Ind. Cas. 1053 : 4 PLT 720 : (1923) Pat. 256. Here the mortgagor on refusal of his tender applied to withdraw the money deposited. The mortgagee then changed his mind and expressed himself as willing to accept the money in deposit in full discharge of the mortgage debt. It was held that the money was the property of the mortgagor and when he demanded its return, the Subordinate Judge had no jurisdiction to order it to be paid to the mortgagee. That sufficiently establishes the position when a tender has been made and has not been accepted and no suit has as yet been instituted. But it is suggested that the position in some way may have been changed by the fact of the mortgagor having instituted a suit for redemption. Whether such a consequence could ensue if the prayer in the plaint was for possession of the mortgaged property on the footing that the mortgage had been extinguished by the deposit of the entire mortgage money is a question I have not got to decide here because the plaint was framed otherwise. The prayer was for a decision that the plaintiff has right to enter into possession of the zarpeshgi property on payment of Rs. 300, and that a decree may be passed in favour of the plaintiff for recovery of khas possession of the zarpeshgi property free from encumbrance on payment of Rs. 300.
4. The words used on their face appear to contemplate a future payment of Rs. 300 to be made after and in pursuance of the decree. There are, however, cases in which money deposited under Section 83 has been drawn by the mortgagee, and perhaps some light may be thrown on the subject by considering those decisions although none of them is quite on all fours with the present case. In Dal Singh v. Pitam Singh 25 A 179 : AWN 1903, 2 there had been a deposit under Section 83 followed by a suit for redemption. A decree was passed for redemption on payment of an amount equal to the sum deposited. The mortgagees applied alleging, among other things, that a larger sum was due than that which the decree had declared due. During this appeal they withdrew from Court the amount which had been deposited under Section 83. It was held by the High Court that the appellants having withdrawn that amount could only draw that amount on and subject to the conditions laid down in Section 83, that is to say, the acceptance of the money in full discharge and that they were disqualified from claiming that a larger amount was due. There are observations in this judgment which indicate that in the view of the learned Judges the money was not the property of the mortgagee but remained the property of the mortgagor until its acceptance by the mortgagee in satisfaction of his mortgage. A portion of the deposit had apparently been allowed by the Subordinate Judge to be attached at the instance of some creditors of the mortgagee and Stanley, C.J. and Burkitt, J. said:
How the learned Subordinate Judge conceived that he had any jurisdiction to allow such a deposit, not accepted by the mortgagees; to be attached and drawn out of Court by creditors of the mortgagees we are at a loss to understand.
5. In Ramchandra Marwari v. Rani Keshobati Kumari 36 IA 85 : 2 Ind. Cas. 935 : 36 C 840 : 10 CLJ 1 : 6 ALJ 617 : 6 MLT 1 : 11 Bom. LR 765 : 13 CWN 1102 : 19 MLJ 419 (PC), it was affirmed that a creditor who draws money deposited under Section 83 can only do so in full discharge of the mortgage debt. It seems to me that it is this acceptance and this only which can convert money deposited under Section 83 from money, the property of the depositor, to the money, the property of the mortgagee. Mothiar Mira Taragan v. Ahmatti Ahmed Pillal 29 M 232 follows the Allahabad decision above cited in holding that the money deposited in Court by the mortgagor is not the property of the mortgagee and is not liable to be attached by a creditor of the latter. Another decision referred to has been Tadepalli Subba Rao Garu v. Sri Balusu Buchi 47 M 7 : 72 Ind. Cas 292 : AIR 1923 Mad. 533 : 44 MLJ 534 : 18 LW 61 : (1923) MWN 533. In this case money had been deposited under Section 83 and after the decree of the lower Court had been drawn by the defendants mortgagees, it was held there that in drawing the money they were acting in execution of their decree and not in the capacity of mortgagees accepting a deposit under Section 83, and Krishnan, J. said:
Execution of a decree has never been held to estop the decree-holder from appealing from it so far as it is against him.
6. There seems to be a difference between the facts of this case and that in Dal Singh v. Pitam Singh 25 A 179 : AWN 1903, 2, because in the Madras caee the decree which had been passed contained a clear order that the defendants were to take out the money which had been deposited in Court, so that the taking of it was to be referred to the decree and not to Section 83, Transfer of Property Act, which was no longer applicable. But the decree in the redemption suit between the present parties does not contain any direction that the money lying in deposit under Section 83 is to be taken by the mortgagees. Failing such a direction in the decree itself, it seems to me that the pendency of a litigation and even the passing of a decree does not affect the character or the ownership of money which had been deposited under Section 83. It does not become merged in the mortgaged property or "money in the suit" unless and until there has been acceptance of it by the mortgagee. If that is so then the petitioners have good reason to complain of the order of the Munsif applying their money in payment of a liability which attached to property of Radha Mohan and others. It is faintly contended for the opposite party that the petitioners are estopped from objecting to the application of this money in discharge of a mortgage, because on July 20, 1936, they had presented a petition to the Court in which it is recited that the mortgagees had not withdrawn Rs. 300 formerly deposited and that the petitioners have no objection if the mortgagees withdrew the said money. Mr. Mitter contends that this petition shows that the tender of the money was still open and claims that this entitles him to treat it as money in the suit or as money going with the mortgaged property. But the fact that the mortgagor kept the tender open does not, it seems to me, make any difference to the position which, as I have said, remains exactly where it was when the money was first tendered and must continue to remain exactly where it was until there was acceptance within the meaning of Section 83 by the mortgagee. When the plaintiff says "If the mortgagees withdraw the said money, the petitioners have no objection," that does not mean that they are making any other offer beyond the original offer of the money in full discharge and conditional on its being accepted as a full discharge. But the petition itself goes on to say, "But in order to avoid a dispute, it is necessary to deposit another sum of money," and that Ramdahin Missir is ready to pay Rs. 300. This procedure is in agreement with the view which I have indicated above regarding the scope of the suit itself. The frame of the plaint, as I have said, contemplates payment of Rs. 300 to be made after and in pursuance of the decree of the Court. The Munsif, in my opinion, went beyond his jurisdiction in directing payment to the mortgagee of the amount of Rs. 300 in deposit under Section 83. This was the property of Kamta and Gupteswar and they are entitled to draw this money. As regards the deposit of Ramdahin, I have not been asked by this party to interfere with the order; but I may point out to the Munsif that Section 91, Transfer of Property Act, gives a right to redeem among others to any person who has an interest in, or charge upon, the property mortgaged, or in or upon the right to redeem the same.
7. It remains to consider the second point regarding the costs. The Munsif is entirely in error when he thinks that Kamta and Gupteswar have ceased to be parties to the suit and to the litigation. Their names appear as decree-holders in the High Court's decree. Therefore, the position that has arisen is the position contemplated in Order XXI, Rule 15, Civil Procedure Code. It is the duty of the Munsif under Sub-rule (2) of that rule to make such order as is necessary for protecting the interest of the remaining plaintiffs if one or more and not all the plaintiffs seek to execute the decree for costs. The interference of this Court in revision is always limited to the minimum which is necessary for avoidance of miscarriage of justice, and the only order which I find it necessary to pass is that Rs. 300, which was deposited by Iswar Dutt is to be deemed the property of Kamta and Gupteswar and they are entitled to it. It is not without their consent to be paid to the mortgagees. The petitioners will get their costs of this application: hearing fee two gold mohurs.