HORAY KRISHNA NASKAR Vs. SASHI BHUSAN PURKAIT

JUDGEMENT

(1.) This appeal arises out of a suit for foreclosure. It has been decreed by both the Courts below, and defendant 6 who represents the equity of redemption is the appellant before me. He was, in fact, the main contesting defendant in the suit. The only ground on which the suit was resisted was that the mortgage security had been extinguished by reason of a deposit made under S.83, T. P. Act. That deposit was made on behalf of the original mortgagors from whom defendant 6 took an assignment of the equity of redemption. The Courts below have taken the view that the deposit was not a valid one under Section 83, T. P. Act, in so far as it was made at a particular season of the year when, under the terms of the bond, repayment had been expressly forbidden. It was said that the stipulation was that the mortgage could be discharged only by payment beyond the fruit season. The deposit however was made in Court while the fruit season was still on. I do not think however, assuming that this particular condition in the mortgage bond continued to be enforcible, that that should in any way, render the deposit invalid. The effect of the deposit would be to stop the running of interest; but, in this case, as the property was held by the mortgagee in lieu of interest, no such question arose. It was quite open to the mortgagee to wait till the fruit season was over before he withdrew the deposit. It is not shown that the mortgagors made a condition of the deposit that the plaintiff was to take out the money forthwith in satisfaction of his dues. There is thus, in my opinion, no substance in the point on which the Courts below refused to give effect to the alleged deposit.

(2.) There is however a much stronger ground on which the plaintiff may rest his case, and it is that the mere fact of a deposit under Section 83, T. P. Act, would not be sufficient to extinguish his right to foreclosure. In order to appreciate the question which arises on this head, it is perhaps necessary to state a few facts. It appears that after the deposit was made, notice was duly served on the plaintiff by the Court as required by Section 83. Para. 3 of the plaint, in fact, contains an express admission of the receipt of such notice. It may be pointed out in passing that the learned Munsif's remarks in this connexion are not at all correct. He is wrong in saying that the plaintiff denied having received any notice of the deposit. That is not so. It was, in fact, plaintiff's case that on receipt of such notice, he went to the Court to apply for withdrawal of the money, when, however, he learnt that the money had been already taken away by pleader purporting to act under his authority. That pleader is defendant 7 in the present suit. It has been found in effect that this gentleman had not really been authorized by the plaintiff, a finding which, as the learned Judge points out, was not challenged. It is not disputed by the pleader that he did withdraw the money. The position, therefore, is that the money was drawn out by somebody who was not entitled to it, and when the party for whom the deposit had been made sought to apply for it, it was not available.

(3.) The question arises, in these circumstances, whether the plaintiff thereby lost his right to enforce his security. The learned advocate for the appellant has urged that the fact of the deposit was sufficient to extinguish the right of the plaintiff, and he put it on the ground that the liability of the mortgagors had come to an, end with the making of the deposit. The reason the learned advocate puts forward is not really a reason for the conclusion he seeks to draw. It is only another way of stating the same proposition. For, I do not think that it can be maintained that the liability of the mortgagor can be extinguished without the corresponding right of the mortgagee being extinguished at the same time, or vice versa.