DEBI PRASAD Vs. KEDAR SINGH

JUDGEMENT

(1.) THIS appeal arises out of a suit for redemption. The plaintiffs-appellants executed a simple mortgage in 1908. On the 17 of December 1912 they deposited a earn of Rs. 331-10 in Court under Section 83 of the Transfer of Property Act. The suit for redemption, for some reason or another, was not brought until February 1918. It is to be remembered that the mortgagors plaintiffs had all this time been in possession as the mortgage was a simple mortgage. It was found that the amount of tender was insufficient by a small amount, come two or three rupees only. The Court of first instance decreed the suit. It held that the tender under Section 83 of the Transfer of Property Act being insufficient the provisions of Section 84 with regard to the cessation of interest on the principal money from the date of the tender did not apply, It accordingly decreed the suit for redemption on payment of Rs. 1,333-5 9. The plaintiffs appealed. The lower Appellate Court found that, as a matter of fact, the amount of tender was insufficient, but it goes on to say: "the trifling error of Rs. 2.9-6 was due to a mis calculation by his Pleader's clerk. To allow the defendant to take advantage of this error of calculation and claim a sum which has been swollen by the iniquitous rate of interest on the mortgage-debt to thrice the amount of deposit would, in my opinion, be in the highest degree inimitable". We are unable to follow this contention, The tender was in fast insufficient and, therefore, the provisions of Section 84 could not apply. The amount of the insufficiency is wholly irrelevent. Whether it was Rs. 1 or Rs. 10 or Rs. 1,000 makes no difference in law. If this error, was law caused by mistake of some Pleader's clerk possibly the plaintiffs- appellants may have a remedy against him. It is also scarcely fair to say that the amount has risen to thrice the amount of deposit owing to the iniquitous rate of interest, when we remember that the plaintiffs delayed bringing their suit until six years after the tender was made, and, after all, the appellants themselves agreed to the rate of interest. The learned Judge refused the amount payable for redemption by deducting the interest on the principal sum from the date of the so- called tender. In our opinion be could not in law do so. We accordingly allow this appeal, set aside the decree of the Court below and restore that of the first Court with costs throughout including in this Court fees on the higher scale.

(2.) LET the name of Hukum Singh, respondent, be amended by changing it to Tikam Singh, as the mistake was accidental.