Prakash Tatia, J. - (1.) HEARD learned Counsel for the petitioner.
(2.) THE petitioner is aggrieved against the order dt. 03.08.2006 by which the trial Court dismissed the petitioner's application filed under Section 83 of the Transfer of Property Act. According to the petitioner, the petitioner filed suit for eviction of the defendant/non -petitioners on the basis of relationship of landlord and tenant wherein the defendant took a plea that the defendant is in possession as mortgagee. The mortgage deed is registered one. In the said eviction suit, two Courts below namely, trial Court and First Appellate Court held that the defendant is in possession as mortgagee. The present petitioner in that case preferred second appeal which is said to be pending before this Court. 3A. In view of the defence taken by the defendant mortgagee, the petitioner/plaintiff submitted an application under Section 83 of the Transfer of Property Act before the trial Court and submitted that he is ready to pay the mortgage amount and, therefore, he may be permitted to deposit the amount. The trial Court allowed the petitioner to deposit the amount in the Court and issued notice to the mortgagee in possession. The defendant/nonpetitioner submitted that the mortgage consideration was Rs. 30,000/ - and not Rs. 3,000/ -. It is also submitted that the petitioner also sent a money order of Rs. 3,000/ - which was not accepted by the non -petitioner because the mortgage consideration was Rs. 30,000/ -.
(3.) THE trial Court on the ground that the plaintiff deposited the amount with the condition and that deposit is subject to the decision of above referred second appeal. The conditional amount was not accepted by the trial Court to be valid deposit. Therefore, the trial Court dismissed the petitioner's application under Section 83.;