Decided on December 19,1973



- (1.) THIS appeal is by the defendant from the reversing decision of the lower appellate Court in a suit for redemption.
(2.) AC. 1. 06 of land situated in Mauza Parbatipur was usufructuarily mortgaged by the plaintiff to the defendant as security for the loan of RS. 800/-advanced by the defendant to the plaintiff. Thus transaction was embodied in a registered mortgage deed dated 1-3-1966. Possession also was delivered to the defendant that very day. This deed contained the stipulation that except in the month of Chaitra of the current year, the mortgagor shall repay the principal amount (Rs. 800/-) and thereupon the mortgagee shall release the mortgaged land and deliver khas possession thereof to the mortgagor. These facts are not in controversy. The plaintiff deposited Rs. 800/- towards the principal money under the mortgage in the Court on 4-4-1967 under Section 83 of the Transfer of Property Act to the account of the defendant mortgagee. The notice issued from the court in pursuance of this deposit under Section 83 was served on the defendant-appellant on 25-5-1967. Despite receipt of such notice, the defendant-mortgagee did not withdraw the amount nor did he relinquish possession of the mortgaged property to the plaintiff. The plaintiff on the aforesaid allegations filed the present suit for redemption. The plaintiff also averred in his plaint that before making the deposit under Section 83 of the Transfer of Property Act, he had offered the principal amount to the defendant on 31-3-1967, and since he refused to accept the money, he was compelled to make the deposit as aforesaid. This part of the story has not been believed by either of the courts below and will not be referred to any further. The plaintiff claimed that the defendant was accountable for the usufructs received by him from the mortgaged land for the years in his occupation till the date of suit. According to him, the usufructs received by him would be valued at Rs. 1,800/ -. The defendant is entitled to his principal sum of Rs. 800/- plus interest at 9 per cent per annum on such principal sum from 1-3-1966 till 21-5-1967 amounting to rs. 88/ -. By adjusting this sum of Rs. 888/- against the value of the usufructs received by the mortgagee, the net amount payable by the latter is Rs. 912. The plaintiff has relinquished his claim in regard to Rs. 112 and has claimed recovery of Rs. 800 from the defendant in addition to his main relief of redemption.
(3.) THE defence plea was threefold. The first contention was that the defendant is not liable to account under Section 77 of the Transfer of Property Act, inasmuch as there was a stipulation in the mortgage deed that the usufruct of the mortgaged land would be appropriated towards interest due on the principal sum advanced. The second contention was that the plaintiff was not entitled to the benefit of section 9 of the Orissa Money Lenders Act. The third plea was that in view of the stipulation in the mortgage deed, extracted above, the accruing of interest does not cease from the date of deposit under Section 83 of the Transfer of Property act be-cause such deposit was not a valid one. In elaboration of this plea, it is argued. that under the contract embodied in the mortgage deed, the plaintiff having defaulted to tender the principal money during Chaitra of 1967, the defendant was entitled to continue to be in possession till the next Chaitra, i. e. , chaitra of the year 1968. By the time the notice of deposit was received by the defendant, the month of Chaitra of 1967 was already over. In that view the defendant was entitled to interest and, as such interest had not been deposited along with the principal sum of Rs. 800 there was no valid deposit.;

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