(1.)The plaintiff sued on a hypothecation bond Ext. A1 dated the 5th April, 1952, for the balance of principal amounting to Rs. 2,820/- and interest thereon from the 5th April, 1954, till the date of the suit. The suit was instituted on the 1st July, 1955. On the 9th July, the defendant filed a petition under S.83 of the Transfer of Property Act & deposited Rs. 2,518/-. In the suit the question arose whether in view of this deposit and of the circumstances under which it was made, the plaintiff is entitled to future interest and to the costs of the suit. This was answered against the plaintiff and the suit was decreed only for the principal and interest till the date of the suit, amounting to Rs. 2,494 As. 13. The District Judge confirmed the decree in the appeal preferred by the plaintiff. He has come up in second appeal and reiterated his claim for future interest and costs.
(2.)The first point for consideration is about the validity of the deposit under S.83 of the Transfer of Property Act. It has been held in A. Thiagaraja Aiyar v. G. Ramaswami Aiyar ( AIR 1919 Mad. 948 (2)) that this Section has no application and does not enable a deposit to be made once a suit is laid. This has been followed in the case reported in Nivarthy Bala Chengiah v. Busetty Subbayya ( AIR 1939 Mad. 200 ). The reason, is that once a suit is filed, the amount due on the mortgage can be ascertained only after the decree is passed, which may provide for interest and other matters. O.24, C. P. C. makes provision to enable a deposit or payment into court being made and to stop the accrual of future interest. Indeed, the learned counsel did not contend against the above decision. For this reason the deposit made under S.83 was not valid. At no time was this transferred to the credit of the suit to enable the defendant to avail himself of the provisions of O.24.
(3.)The learned counsel for the defendant relied also on certain proceedings prior to the institution of the suit for contending, that in the peculiar circumstances of this case, future interest and costs ought not to be decreed. A sum of Rs. 2,500/- was deposited by the defendant towards another liability on the 7th April, 1955, in O. P. 28 of 1955. On the 28th May, 1955, the plaintiff gave the defendant by Ext. A. 2, a notice of demand for the amount due under Est. A. 1, to which the latter replied by Ext. A. 38 on the 6th June, 1955, requesting that he may be given time for payment and also setting up his rights as an agriculturist in the matter of such payment. On the 11th June, 1955, O. P. 28 of 1955 was dismissed. On the 20th June, 1955, the defendant filed a petition Ext. A 14, for the disbursement of the above sum of Rs. 2,500/- to which, on the 29th June, 1955, the plaintiff filed a counter Ext. A 15 stating that he bad no objection to the amount being disbursed without prejudice to his rights whatever they were. On the 29th itself, the defendant filed a petition Ext. A 16 supported by affidavit Ext. A 17, for an order directing the plaintiff to withdraw a sum of Rs. 2,320/- and interest thereon from out of the amount of Rs. 2,500/- in deposit, and also sent an express letter Ext. A 10 to him on the same terms, and stating further that if he was unwilling to receive the amount, the defendant would withdraw the amount from court and p v. him. He was requested not to file a suit. But on the 30th June, 1955, or reasons which have not been made clear, the defendant took an order on Ext. A 14 for the issue of a cheque to him and allowed Ext. A. 16 to be dismissed as not pressed. Thus the situation after that date was that the plaintiff had necessarily to file a suit, for he could not agree to the stand taken in Ext. A. 36. So the plaintiff was justified in instituting the suit on the 1st July, 1955, and as the hypothecatee, the costs of the suit cannot be denied to him.