1. This is an appeal by Kushal Singh who was a defendant in a suit for redemption. The mortgage which was sought to be redeemed was made by the plaintiff on 15th July 1930 and was for a sum of Rs. 400. On 26th November 1932, the plaintiff submitted an application under Section 83, T.P. Act, stating that the amount due to the defendant on the mortgage was Rs. 667-3-6, but by way of precaution the plaintiff was depositing a sum of Rs. 670 to the credit of the mortgagee, opposite party. Notice of this application was sent to the mortgagee and according to the process-server's report the notice was served on 13th January 1933. The mortgagee refused to withdraw the money with the result that the money remained in Court.
2. On 25th November 1933 the plaintiff brought the present suit for redemption and it was pleaded by the defendant that the deposit made by the plaintiff under Section 83 was not a valid deposit and the plaintiff could seek redemption only if the entire amount payable by the plaintiff up to date was paid by the plaintiff. The Court of first instance accepted the plea in defence and gave a decree for redemption on payment of a sum of Rs. 910-10-0. The plaintiff went in appeal to the lower Appellate Court and that Court found on admission made by the defendant that Rs. 670 represented the full amount payable under the mortgage to the defendant up till the 26th November 1932. It would thus appear that the parties were agreed that the deposit was made on 26th November 1932 and that the amount due on that date under the mortgage was Rs. 670. The lower Appellate Court has further found that notice was served on the mortgagee on 13th January 1933 and that interest should therefore run up till that date and the amount due to the mortgagee on 13th January 1933 would be Rs. 688-9-7. The lower Appellate Court has, therefore, decreed the plaintiff's suit on payment of Rs. 688.9-7.
3. After the delivery of judgment by the lower Appellate Court, an unsigned petition was presented on behalf of the defendant in which it was stated that the amount was actually deposited in the Government Treasury on 30th November 1932 and the deposit of Rs. 670 was insufficient and invalid in law. When I say 'unsigned' I mean that the petition, although it purports to be by Kushal Singh defendant, is not signed by him, but one Mr. H.N. Shukla seems to have countersigned the petition and I am informed by Dr. Malaviya that Mr. Shukla was the counsel for Kushal Singh. The order that was passed by the lower Appellate Court on this application (notice of which does not seem to have been given to the plaintiff) was : 'Place it on the file. I don't want to exercise my powers under Section 151, Civil P.C.'. The petition does not say as to what the amount of the mortgage would be on 30th November 1932 and as stated before, the plaintiff on 26th November 1932 stated in his petition that the amount due on the mortgage was only Rs. 667-3-6 but by way of precaution he would deposit Rs. 670, and it may be that even if the facts stated in the petition of 13th July 1935 are correct, and if that petition can at all be taken into consideration, then the amount due up till 30th November 1932 would not be more than Rs. 670. In any event, I have not tried to make any calculation up till 30th November 1932, because I hold the view that the defendant accepted the position that the money was deposited on 26th November 1932 and that the amount due under the mortgage was not more than Rs. 670 on the date of the deposit.
4. In second appeal, it is contended before me that the amount was deposited on 30th November 1932 and was not a full deposit inasmuch as more than Rs. 670 was due on that date. I have already in an earlier portion of my judgment discussed this aspect of the case and I come to the conclusion that it is not open to the defendant to say that the deposit was made on 30th November 1932 at this belated stage. The defendant woke up on 13th July 1935 after the judgment of the lower Appellate Court, and the plaintiff never had an opportunity to meet this point in the Court below. The second point is more important and it is that under Section 84, T.P. Act, interest will cease to run from the time that notice required by Section 83 has been served on the mortgagee. By the Amending Act 20 of 1929 the words ' and the notice required by Section 83 has been served on the mortgagee' have been added to Para. 1 of Section 84 and the contention is that a deposit to be a valid and legal deposit has got to calculate the interest not only up till the date of the deposit but up till the date that the notice required by Section 83 has been served on the mortgagee. The validity of the deposit has got to be determined by a reference to Section 83, T.P. Act, and it is clear that if the deposit is not a valid deposit under Section 83, then the opposite party mortgagee would be justified in refusing to accept the deposit and the applicant, when he brings a suit for redemption, will derive no advantage by the deposit made by him. It has been held in a number of oases that the deposit must comply with all the terms laid down in Section 83; see the oases in Kannu Mal v. Indarpal Singh A.I.R. 1922 All 147, Kannu Mal v. Indarpal Singh A.I.R. 1923 All 183, Gokul Kalwar v. Chander Sekher : AIR1926All665 , Ganeshi Lal v. Rohni Rukumdhuj Prasad Singh : AIR1928All311 , Subbai Goundan v. Palani Goundan A.I.R. 1917 Mad. 922 and Debi Prasad v. Kedar Singh A.I.R. 1921 All 280. In the last two cases the deposit was short by a very trifling amount and yet the Courts held that the deposit was not a proper deposit and the plaintiff when he brought a suit for redemption could not take advantage of the deposit made by him but he had to pay the entire sum due on the mortgage up till the date of the suit, and similarly it is argued before me that the plaintiff of the present suit cannot take advantage of the deposit made by him on 26th November 1932 but that he should, as directed by the trial Court, pay interest up till the date of the suit.
5. On behalf of the plaintiff-respondent it is contended that the deposit that was made under Section 83, T.P. Act, was a valid deposit and it is not necessary for the plaintiff to deposit anything more than what he did deposit and therefore the decree of the lower Appellate Court is correct inasmuch as it has allowed the defendant interest not only up till 26th November 1932 but up till 13th January 1933, the date when notice under Section 83 was served on the mortgagee. The submission on behalf of the plaintiff is that it is impossible to anticipate when notice would be served, for it is conceivable that the notice may sometimes be served even after a year from the date of the deposit and from the time that process is issued to the defendant, and if the law contemplated that a deposit would become an invalid deposit under Section 83 if interest up till the date of the service of the notice was not included in the deposit, it would throw an almost impossible burden on the applicant mortgagor and this is not what was contemplated. I feel inclined to agree with the contention advanced on behalf of the plaintiff-respondent and I hold the view that if the deposit is a valid deposit on the date on which it was made, namely that if interest has been calculated up till the date of the deposit, then all that the defendant can say when notice is served on him is that some more interest should be allowed to him and that that amount should also be paid to him. The Court on such a plea will find out the amount of the interest and will direct the applicant mortgagor to pay that amount. If the applicant mortgagor refuses to pay that amount, the mortgagee opposite party might be entitled to refuse to accept the amount; but he (the mortgagee) cannot refuse to accept the deposit on the ground that the initial deposit was short. In the circumstances of the present case the mortgagee never came to Court. Thus be cannot in the present suit ask for anything more than that interest from 26th November 1932 up till 13th January 1933 should be paid to him and that is what the lower Appellate Court has done. In the view that I have taken of this case, there is no force in this appeal and I dismiss it with costs. Leave to file an appeal by way of Letters Patent is allowed.