KUSHAL SINGH Vs. RAM KISHUN SINGH

JUDGEMENT

(1.) This is an appeal by Kushal Singh who was a defendant in a suit for redemption. The mortgage which was sought to be redeemed was made by the plaintiff on 15 July 1930 and was for a sum of Rs. 400. On 26 November 1932, the plaintiff submitted an application under Section 83, T.P. Act, stating that the amount due to the defendant on the mortgage was Rs. 667-3-6, but by way of precaution the plaintiff was depositing a sum of Rs. 670 to the credit of the mortgagee, opposite party. Notice of this application was sent to the mortgagee and according to the process-server's report the notice was served on 13th January 1933. The mortgagee refused to withdraw the money with the result that the money remained in Court.

(2.) On 25 November 1933 the plaintiff brought the present suit for redemption and it was pleaded by the defendant that the deposit made by the plaintiff under Section 83 was not a valid deposit and the plaintiff could seek redemption only if the entire amount payable by the plaintiff up to date was paid by the plaintiff. The Court of first instance accepted the plea in defence and gave a decree for redemption on payment of a sum of Rs. 910-10-0. The plaintiff went in appeal to the lower Appellate Court and that Court found on admission made by the defendant that Rs. 670 represented the full amount payable under the mortgage to the defendant up till the 26 November 1932. It would thus appear that the parties were agreed that the deposit was made on 26 November 1932 and that the amount due on that date under the mortgage was Rs. 670. The lower Appellate Court has further found that notice was served on the mortgagee on 13 January 1933 and that interest should therefore run up till that date and the amount due to the mortgagee on 13 January 1933 would be Rs. 688-9-7. The lower Appellate Court has, therefore, decreed the plaintiff's suit on payment of Rs. 688.9-7.

(3.) After the delivery of judgment by the lower Appellate Court, an unsigned petition was presented on behalf of the defendant in which it was stated that the amount was actually deposited in the Government Treasury on 30 November 1932 and the deposit of Rs. 670 was insufficient and invalid in law. When I say unsigned I mean that the petition, although it purports to be by Kushal Singh defendant, is not signed by him, but one Mr. H.N. Shukla seems to have countersigned the petition and I am informed by Dr. Malaviya that Mr. Shukla was the counsel for Kushal Singh. The order that was passed by the lower Appellate Court on this application (notice of which does not seem to have been given to the plaintiff) was : "Place it on the file. I don t want to exercise my powers under Section 151, Civil P.C.". The petition does not say as to what the amount of the mortgage would be on 30 November 1932 and as stated before, the plaintiff on 26 November 1932 stated in his petition that the amount due on the mortgage was only Rs. 667-3-6 but by way of precaution he would deposit Rs. 670, and it may be that even if the facts stated in the petition of 13 July 1935 are correct, and if that petition can at all be taken into consideration, then the amount due up till 30 November 1932 would not be more than Rs. 670. In any event, I have not tried to make any calculation up till 30 November 1932, because I hold the view that the defendant accepted the position that the money was deposited on 26th November 1932 and that the amount due under the mortgage was not more than Rs. 670 on the date of the deposit.