S.N.Sahay - (1.) THESE two appeals preferred against the same appellate decree have been heard together and are being disposed of by a common judgment.
(2.) SMT. Chaman Ara Begum executed a mortgage in favour of Subodh Chand Jain in respect of the house in suit on January 28, 1970 for a consideration of Rs 2 000/- only. Hafiz Murtuza Husain, husband of the mortgagor, also joined in the execution of the mortgage The mortgagors deposited a sum of Rs. 2,0o0/- representing the mortgage money in Court of Munsif City, Bahraich on November 8, 974 under Section 83, Transfer of Property Act, 1982 Notice of the deposit was given to the mortgagee, but he refused to withdraw the money deposited in his favour. Hence the suit giving rise to these appeals was instituted by the mortgagors for redemption of the mortgage and for the recovery of Rs. 2036.60 as mesne profits from November 9, 1974 to July, 1976 and also for pendente lite and future mesne profits and interest. The suit was resisted by the Mortgagee on a number of grounds It was, interalia, pleaded that there was no valid deposit of the mortgage money in court 8nd, therefore, the mortgagors were not entitled to mesne profits. The suit was tried by the learned Civil Judge, Bahraich. He passed a decree on August 26, 1977 in favour of the mortgagors for redemption of the mortgage and possession over the house in suit and also mesne profits at the rate of Rs. 50/- per month from November 9, 1974 to July 19, 1976 and also pendente- lite and mesne profits. The mortgagee preferred an appeal against the decree of the trial court. The appeal was heard by the learned District Judge, Bahraich and the same was partly allowed on May 19, 1978. The decree of the trial court was modified to the extent that the suit for recovery of mesne profits for the period from November 9, 1974 to July 19, 1976 and pendente-lite and future mesne profits was dismissed. The costs in the appellate court were also made easy. It has been urged on behalf of the mortgagors that the learned District Judge has erroneously held that the deposit made in Court by the mortgagors under Section 83, is not a valid deposit by reason of the fact that the mortgagors did not take steps for the appointment of guardian-ad-litem of the mortgagee who was a minor and no guardian-ad-litem was appointed for him by the Court. On the other-hand, the contention of the mortgagee is that after coming to the conclusion that the deposit made under Section 83, cannot be regarded to be a valid deposit, the learned District Judge should have dismissed the whole suit Section 83, Transfer of Property Act, confers right on a mortgagor to deposit in court the amount remaining due on the mortgage to the account of the mortgagee. The deposit may be made at any time after the principal money payable in respect of the mortgage has become due and before a suit for redemption of the mortgaged property is barred. The deposit may also be made by any other person entitled to institute the suit for redemption. When deposit is so made, it is the duty of the Court under Section 83 to cause written notice of the deposit to be served on the mortgagee. If mortgagee is a minor and there is no legal curator of his property, then in view of the provisions of section 103, the mortgagor or the person making the deposit has to make an application to the court to appoint a guardian-ad-litem for the purpose of serving or receiving the notice or taking the deposit out of Court and for the performance of all consequential acts, which could or ought to be done by the mortgagee. The provisions of Order 32, CPC would apply to such application and to the parties thereto and to the guardian appointed thereunder.
(3.) IT was held in Sheo Saran Chaudhari v. Ram Lagan Das, AIR 1932 Alld. 355, on which the learned District Judge has also placed reliance, that in a case where the mortgagor deposits the full amount under section 83, but fails to take steps to have a guardian-ad-litem appointed by the court, the minor mortgagee is not bound by the proceedings even-though a notice of deposit was actually issued to him under the guardianship of his father. Similar view has also been taken in latter decisions. In Khannu Mai v. Indar Pal Singh, AIR 1923 Alld. 183, it was held that .where the mortgagee happens to be a person incapable of entering into a contract, Section 103 lays down the mode in which the mortgagor has to act in order to enable the mortgagee to take away the deposit made in Court. According to the provisions of that Section, in the case of such a mortgagee, the mortgagor has to apply to the court to have a guardian appointed in the manner provided in Order 32 CPC. Under that order, the Court may appoint a guardian for the suit upon application made by the plaintiff or by the guardian. It was further held that in the case of the deposit made under section 83, interest shall cease from the date on which the mortgagor has done all that has to be done by him to enable the mortgagee to take the amount out of Court.;