DURGA PRASAD Vs. TULSYA BAI

JUDGEMENT

(1.) -The brief facts out of which this revision petition has arisen be noticed : A mortgage deed was registered on 13th October, 1983, in favour of the petitioner (hereinafter referred to as mortgagee) by one Kapoor Chand, whose legal heirs are the respondents (hereinafter referred to as mortgagor). There was a stipulation in the mortgage deed. This is condition No. 4. It was mentioned that if the mortgaged amount is not returned to the mortgagee within the period stipulated then the mortgagee will be within his rights to get the sale deed executed and the mortgage deed would be treated as an 'agreement or sell'. This aspect of the matter that there is condition No. 4 in existence in mortgage deed dated 13th of October, 1983 is not being disputed by the learned counsel for the parties. The mortgagor filed an application under Section 83 of the Transfer of Property Act, 1882 (hereinafter referred to as the Act). The Court below has allowed that application. It is against the above order, the present revision petition has been preferred.

(2.) The argument raised by the mortgagee /petitioner is that there is a condition stipulated in the mortgage deed i.e. condition No. 4 and a dispute having arisen, it was not proper for the Court below to proceed in terms of Section 83 of the Act. Reliance for this is a being placed on the decision given by this Court in the case reported as Bajirao Bhonsale v. Jagat Narain1. In this case, it was held that the summary procedure under Section 83 of the Act is not applicable where the mortgagee disputes the right of the mortgagor to redeem or for any other reason refuses to accept the payment.

(3.) Similar view was expressed by Allahabad High Court in Ahmadultah v. Abdul Rahim, It was observed that making by a mortgagor of deposit, under Section 83 of the Transfer of Property Act does not ipso facto extinguish the mortgage where the mortgagee has refused to accept the deposit. It was further observed that if the mortgagor is dissatisfied with the action of the mortgagee in refusing to accept the money deposited then the mortgagor has to enforce his rights by resort ing to the regular procedure.