HARDIAL Vs. PIRTHI SINGH

JUDGEMENT

(1.) This appeal arises out of a suit for sale upon a mortgage executed by the first two defendants in favour of the plaintiff on the 16 of December, 1886. The amount secured by the mortgage was Rs. 1,300. It was stipulated in the mortgage deed that interest would be paid half-yearly at the rate of 15 per cent, per annum, and that in the event of interest not being paid every half-year, compound interest should be charged at the same rate. The defendants Nos. 1 and 2 are the mortgagars. The defendants Nos. 3, 4 and 5 are the sons and grandson of the mortgagors. The other defendants are purchasers of a part of the mortgaged property. It was alleged on behalf of the defendants that a sum of Rs. 600 had been paid in addition to the amount which the plaintiff admitted having received. It was also urged that the mortgage had been discharged in full, inasmuch as the mortgagee had received a sum of Rs. 2,725, which was deposited by the purchaser under Section 83 of the Transfer of Property Act.

(2.) The Court below has overruled these objections and has decreed the claim in full.

(3.) The defendants have preferred this appeal and the first contention raised before us, by their learned Counsel, is that the mortgagee must be deemed to have received the Rs. 2,725, deposited by the purchaser under; Section 83 of the Transfer of Property Act, in full discharge of the mortgage. The circumstances under which the amount was received by the mortgagee are set forth in the proceedings of the Court, dated the 14 of September, 1895. It appears that the mortgagee refused to accept the amount deposited in full satisfaction of the mortgage, and alleged that a much larger sum was due. Thereupon, the pleader for the purchaser, who deposited the mortgage money, stated that the amount deposited might be paid to the mortgagee and that for the balance, if any, the mortgagee might seek his remedy. in Court. It was upon these terms that the; mortgagee received the money. Therefore, it cannot be said that he took it in full discharge of the mortgage, as mentioned in the second paragraph of Section 83 of the Transfer of Property Act. The order of the Court was that the amount deposited be endorsed on the mortgage deed and that the mortgage deed be returned to the mortgagee.