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Chandramani Pradhan Vs. Hari Pasayat and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 217 of 1972
Judge
Reported inAIR1974Ori47
ActsTransfer of Property Act, 1882 - Sections 83
AppellantChandramani Pradhan
RespondentHari Pasayat and ors.
Appellant AdvocateP.V. Ramdas, Adv.
Respondent AdvocateH.G. Panda and ;Rama Natia, Advs.
DispositionRevision allowed
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........dues. the learned munsif after having heard the parties directed the petitioner to accept the money deposited and deliver possession of the properties with necessary documents. against this order an appeal was filed before the subordinate judge, aska, who held that no appeal lay. this revision has been filed against the order of the learned munsif dated 7-9-1971.2. the order of the learned munsif is wholly misconceived. section 83 of the t. r act, so far as relevant, runs thus:--'at any time the principal money payable in respect of any mortgage has become due and before a suit for redemption of the mortgaged property is barred, the mortgagor, or any other person entitled to institute such suit, may deposit, in any court in which he might have instituted such suit, to the account of.....
Judgment:
ORDER

G.K. Misra, C.J.

1. The petitioner Is the mortgagee. Opposite parties are the mortgagors. Opposite parties deposited Rs. 500/-towards the mortgage dues under Section 83 of the Transfer of Property Act A notice was served on the petitioner by the court to accept this amount and to give delivery of possession of the mortgage security. The petitioner's case was that he was entitled to more money and the amount deposited would not satisfy the mortgage dues. The learned Munsif after having heard the parties directed the petitioner to accept the money deposited and deliver possession of the properties with necessary documents. Against this order an appeal was filed before the Subordinate Judge, Aska, who held that no appeal lay. This revision has been filed against the order of the learned Munsif dated 7-9-1971.

2. The order of the learned Munsif is wholly misconceived. Section 83 of the T. R Act, so far as relevant, runs thus:--

'At any time the principal money payable In respect of any mortgage has become due and before a suit for redemption of the mortgaged property is barred, the mortgagor, or any other person entitled to institute such suit, may deposit, in any Court in which he might have instituted such suit, to the account of the mortgagee, the amount remaining due on the mortgage.'

3. It would thug be seen that the section does not make any provision to compel the mortgagee to accept the money deposited. The deposit is made only for the purpose of instituting a suit for redemption and before the suit Is filed the amount is to be deposited. When the mortgagee got notice under Section 83 of the T. P. Act he raised an objection that the amount deposited would not discharge the entire mortgage dues. He was un-willing to accent the money. The court has no power to compel the mortgagee to accept the amount

4. The correct approach should have been that after the mortgagee refused to accept the amount the mortgagors should have instituted a suit for redemption and would have taken a plea therein that the entire mortgage dues had been deposited and the mortgage stood redeemed. At any rate, in this proceeding under Section 83 of the T. P. Act the mortgagee cannot be compelled to part with the mortgage security or to deliver the documents relating to the mortgage. The order of the learned Munsif is contrary to law. He exercised his jurisdiction illegally and his order passed in exercise of power not conferred upon him under Section 83 is liable to be set aside.

5. As the petitioner is bound to succeed on merits, inordinate delay in filing the revision by pursuing the appeal is condoned.

6. In the result, the revision is allowed. The order of the learned Munsif is set aside. In the circumstances, there will be no order as to costs.


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