P.K. Mohanti, J.
1. This Civil Revision arises in the following circumstances:
The opposite party had mortgaged 11.37 acres of land for Rs. 10,000 with the petitioner by executing a registered document on 20-5-69 and had delivered possession of the lands. The document is called a mortgage by conditional sale. The terms were that the mortgagee was to possess and enjoy the mortgaged lands for five years i.e. till 20-5-74 and thereafter whenever the mortgagor paid Rs. 10,000 within a period of seven years, the mortgage was to stand discharged and the mortgagee was to deliver possession of the land to the mortgagor free from all encumbrances and to return back the mortgage-deed. Otherwise the sale would be absolute. In May, 1975 the mortgagor-opposite party deposited the sum of Rs. 10,000 to the account of the petitioner-mortgagee and prayed for delivery of possession. Thereupon the Court issued a notice of the deposit to the petitioner as required under Section 83, Transfer of Property Act. The process server reported that the notice was tendered to the husband of the petitioner but he refused to accept the same. The Court accepted the service of notice on the petitioner as sufficient and set her ex parte. On 11-2-76 the petitioner appeared in Court and filed a verified statement expressing her willingness to accept the deposited amount in full satisfaction of her dues and offered to deliver possession of the mortgaged lands to the opposite party. She also filed a petition for setting aside the ex parte order passed against her. On the same day the opposite party filed a petition to the effect that in view of the impending legislation with regard to the-matters of redemption of mortgage by operation of law, he felt that he should not proceed with the case and wanted to withdraw the same. The matter was posted to 23-2-76 for hearing when the petitioner filed the mortgage deed dated 20-5-69 in pursuance of the terms of Section 83 of the T. P. Act. After hearing the parties the learned Subordinate Judge permitted the opposite party to withdraw the deposit on the grounds that-
(i) the petitioner had not filed a verified petition as required under Section 83 of the Transfer of Property Act,
(ii) the amount due on the mortgage had not been mentioned in the verified statement filed by the petitioner; and
(iii) the petitioner's refusal to accept the notice was as good as denying to accept the deposited amount.
Aggrieved by this order, the mortgagee has come up in revision.
2. Section 83 of the T. P. Act provides that at any time after the principal money payable in respect of any mortgage has become due end before a suit for redemption of the mortgaged property is barred, the mortgagor or any person entitled to institute such suit may deposit in court in which he might have instituted such suit to the account of the mortgagee the amount remaining due on the mortgage. Upon the deposit of such money, the Court has to issue a notice of the deposit to the mortgagee and the latter is entitled to accept the money so deposited in full discharge of the mortgage. The section further provides that where the mortgagee is in possession of a mortgaged property the court must before paying to him the amount so deposited, direct him to deliver possession of the property to the mortgagor and at the cost of the mortgagor either to re-transfer the mortgaged property to the mortgagor or to such third person as the mortgagor may direct.
3. On A reference to the records I am satisfied that the mortgagee did all that was required of her. She expressed; her willingness to accept the deposit and filed the mortgage deed in court. She also offered to deliver possession of the mortgaged land to the mortgagor. As indicated earlier, the notice of deposit was not personally served on her. Even as suming that she refused to accept the notice the inference does not necessarily follow that she refused to accept the deposit. In support of his findings the learned Subordinate Judge relied on a decision reported in AIR 1924 Pat 41 (Mt. Ratna Koer v. Mt. Nenhaki) which is distinguishable on facts. In that case the mortgagees had refused to accept the amount deposited under Section 83 of the T. P. Act. The Court made an order that the mortgegor was entitled to withdraw the money. Subsequently the mortgagees moved the Court and prayed that the money might not be paid even to the mortgagor as there was a criminal case pending against the mortgegor in connection with an alleged theft of the mortgage deed. Upon this, the Subordinate Judge directed the withholding of the payment to the mortgagor. That criminal case ended in acquittal of the mortgagor and later on the mortgagees purported to have changed their mind and intimated their willingness to accept the tender. The learned Subordinate Judge took the view that after the disposal of the case, that is, Section 83 proceedings, when the Court made an order 'that the mortgagor was entitled to withdraw the money on the refusal of the mortgagee to accept it there was no other tender and the money was the mortgagor's money and he was entitled to withdraw it. In the present case the petitioner never refused to accept the deposit. On her first appearance in court she filed a verified statement expressing her willingness to accept the deposit and to deliver possession of the mortgaged property. The deposit made by the mortgagor to the account of the mortgagee operated as a continuing tender and so long as the Court had the custody of the fund and had to dispose of it in one manner or the other according to law, the Court was not prevented from considering the request made by the mortgagee of her willingness to receive the amount, more so when the mortgagor had not rescinded the tender by withdrawal of the amount.
4. The learned Subordinate Judge acted with material irregularity by rejecting the verified statement of the petitioner on the ground of non-payment of court-fee, a defect which could have been cured immediately. Moreover a verified petition may be necessary only if the mortgagee were to state that her dues were more than the amount deposited. To say that she is willing to accept the deposit and deliver back possession, a verified statement was more than enough. As the mortgagee expressed her willingness in a verified statement to accept the deposit in full satisfaction of her dues it was not necessary to mention the amount due on the mortgage. The procedure adopted by the learned Subordinate Judge is wholly unwarranted and misconceived. The mortgagee accepted the deposit and offered to deliver back possession. She also deposited the mortgage deed in court. Thus she has complied with all the prescribed formalities. I have therefore no hesitation in holding that the mortgagee was entitled to withdraw the amount deposited in court.
5. In view of my above findings I would allow the Civil Revision and set aside the order of the learned Subordinate Judge. He is directed to dispose of the proceeding in the light of the above observations and in accordance with the provisions of Section 83 of the Transfer of Property Act. Parties to bear their own costs.