1. The facts necessary for the decision of this appeal may be briefly stated. Defendants Nos. 1 to 11 are related to one another, but are not members of an undivided family, Defendant:) Nos. 1 to 3 belong to one family, defendants Nos. 4 to 7 to another and defendants Nos. 1 to 11 to a third family. The other defendants in the suit are only formal parties. The eleven defendants, who are the owners of an inam village, executed three registered usufructuary mortgage deeds in 1885 in favour of the plaintiffs, according to the terms of which the debt was to be discharged out of the usufruct of certain lands by the end of the harvest of the year Krodhi (1904-1905). In the years 1899-1900 further sums ware borrowed under exhibits E, D, C and A. These amounts were also to be paid up at the time stipulated for the discharge of the previous bonds, and, if the defendants failed to do so, the mortgaged lands were to continue in the possession of the plaintiffs for a further period of five years. The terms of exhibits A, C, D and E are not exactly similar. Exhibits A and D provide that the lands should remain in the possession of the plaintiffs for a period of five years from the 15th Palgunna Suddha of Krodhi (the 21st March 1905), if the amounts due thereunder were not paid by that date. Exhibits 0 and E provide for the execution of mortgage bonds in case of non-payment before the 15th Palgunna Suddha of Krodhi (the 21st March 1905), entitling the plaintiffs to hold possession of the lands as security for their debt for a period of five years, and sets out the terms on which they were to hold them, But it is evidently understood under these documents also that the defendants would not be entitled to get possession before the end of the further period, if they failed to pay the debts before the time fixed for payment. These defendants took possession of the lands about the close of May 1905 according to the finding of the lower Court. On the 27th January 1905, the representatives of the three families sent to the plaintiff the notice, exhibit II, stating that the time fixed in the bonds of 1885 up be which the plaintiffs were entitled to be in possession of the mortgaged lands would expire with that year's paddy crop, that they were prepared ho pay the amounts duo under exhibits C, D and E and that the accounts with respect to the amounts due under them should be settled through mediators. It may be noticed that no reference is made in this document to the mortgage hood, exhibit A, the position, taken up by the defendants apparently being that the plaintiffs had not lent the amount mentioned in that document, and nothing was therefore due to them from the defendants on it. The suit is for the recovery of possession of the lands, which the plaintiffs claim to he entitled to hold till the discharge of the debts due to them under exhibits A, C, D and R and for mesne profits from the date of dispossession. The defendants contend that they are entitled to redeem the mortgages before the expiration of five years, and that the plaintiffs are not therefore entitled to possession. They also plead, that nothing is due to the plaintiffs under exhibit A as the consideration due on that document was not paid to them by the plaintiffs. Subsequent to the institution of this suit, which was on the 2nd August 1905 the defendants pub in petitions on the 25th August 1905 under Section 83 of the Transfer of Property Act in the District Munsif's Court of Sompeta depositing the amounts due under exhibits 0, D and E Only the second plain-tiff appeared in answer ho the notice given of this petition and he declined to receive the amount deposited in Court in full satisfaction of the debt. The defendants contended that the plaintiffs were not entitled to interest on exhibits C, D and E after their refusal to receive the amount deposited.
2. The principal questions before the lower Court wore whether interest on the bond in favour of the plaintiffs ceased in consequence of the tender made in the District Munsif's Court, whether the bond (exhibit A) was not supported by consideration, and whether the plaintiff's were disentitled to recover possession in consequence of the defendant's alleged right be redeem not withstanding the provision in the bonds that the plaintiffs were entitled to remain in possession of the lands for five years from the end of Krodhi (the 4th April 1905). The District Judge decided the last question in favour of the defendants, and directed that the plaintiffs should receive the amounts deposited for exhibits C, D and E from the District Munsif's Court of Sompeta. He also held that the plaintiffs were not entitled to interest after the deposit With regard to the consideration for exhibit A, he came be the conclusion that only Ha. 100 out of the total amount of ltd. 300 was paid on the 17th May 1903), and he gave the plaintiff's, a decree for that amount and interest, and further interest till data of payment, and directed that in case of future by the defendants to pay the amount by the 30th December 1907, the plaintiff's should be placed in possession of the lands mortgaged under it. He held that though the suit was rightly instituted by the plaintiffs when it was brought, the parties might have amicably arranged their disputes without persisting in the litigation, and he, therefore, ordered that the defendants should pay the plaintiffs the fall stamp duty, paid by them on' the plain and one-half of the subsequent costs.
3. The decree in so far as it disallowed the plaintiff's claim for possession is not appeal against. The appellant impeaches the judgment of the lower Court on three points: first, the finding that the He. 203 out of the consideration for exhibit A was not paid; secondly, the finding that the tender under Section 83 of the Transfer of Property Act was valid as against the plaintiffs and disentitled thorn to subsequent interest; thirdly, the order about costs
4. We are of opinion that the finding of the District Judge on the question of the payment of the consideration for exhibit A is incorrect. We arts therefore of opinion that the whole consideration due for exhibit A was paid by the plaintiffs,
5. The next question is whether the tender under Section 83 of the Transfer of Property Act subsequent to the suit was valid in law so as to disentitle the plaintiffs to interest after the deposit, We have come be the conclusion that the deposit is not valid. Section 83 of the Act, no doubt, lava down that 'at any time after the principal money has become payable and before a suit for redemption of tin mortgaged properties is barred, the mortgagor 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,' It does not say that the deposit must be made before a suit is instituted by the mortgatgee to unforce his rights under the mortgage by sale foreclosure or otherwise. But we are of opinion that it could not have been intended to make such a material departure from the ordinary rules relating to tender as would be involved in holding that after one Court has taken cognizance of a suit for the enforcement of a mortgage, the mortgagor has the right to deposit the mortgage amount in another Court. Under sections 86 and 88, the Court in a suit for foreclosure or sale, is to direct an account to be taken of what will be duo to the plaintiff for principal and interact an thy mortgage and for his costs of the suit on a date to be fixed by the Court according to those sections. Under Section 67 a mortgagee, at any time after the mortgage money has become payable to him, and before a decree has been made for the redemption of the mortgaged property, or the mortgage money has been paid or deposited as hereinafter provided' (i.e., under Section 83.) has a right to obtain an order for foreclosure or sale. 'A suit to obtain an order that a mortgagor shall be absolutely debarred of his right to redeem the mortgaged property is called a suit for foreclosure, Those section must be read together with Section 83. There is no doubt that the general rule is that a tender of money must ho made before the creditor institutes a suit for its recovery (see Harris on 'Tender,' pp. 158 and 109, where the learned author quotes the numerous cases which show that the law on the point is quito settled). The same rule is ordinarily applicable to mortgage debts also, (See pp. 163 and 164 of the same book, and Briggs v. Calverly 8 T.R 629 per Lord Kenyon, C.J., and also Coote's Law of Mortgages, volumes I, p. 735.) In England a special statute VII, George II, cap 20, is In force by which a mortgagor may lender the amount and ask for a stay of the action before the hearing. No such provision is made in Section 83. It is very unlikely that it would not have been made, if it ware intended that a deposit could be (sic) after an action brought for the mortgage money. It will be noticed that according to too English statute, the mortgagor is to ask for stay of the action, that is, to take a step with respect to the mortgagee's action itself. The Indian Legislature must no doubt have been aware that according to Section 83, the deposit need not hi necessarily in the Court trying an action to enforce the mortgage, and it is very unlikely that some specific provision would not have been made with respect to the continuance of the mortgagee's suit, if the mortegagor could take action in another Court under section S3 of the Act; moreover, when a court having plenary power over the subject matter of a cause has already taken cognizance of it, it will not conduce to convenience that another tribunal with very restricted jurisdiction should ho invested with the right to deal with it. At any rate clear words would be used to indicate such an intention. It is unnecessary to decide whether a mortgagor could, subsequent to the mortgagee's suit, deposit the mortgage amount in the vary Court in which the suit is pending, although on the language of the section it might, not be easy to make a distinction. But it seems to us clear that it could not. have been intended to enable the mortgagor to make a deposit under the section in a different Court from that in which the mortgagee's suit is pending. It is hardly necessary to point; out that according to the construction contended for by the respondent there would be nothing to prevent the mortgagor from proceeding under Section 83 even after a decree for sale has been passed. No ease has been cited to us, nor are we aware of any, against the view we are inclined to hold, and on general principles we think the appellant's contention should prevail. We are of opinion that when a suit has once been instituted, payment into Court is regulated by order XXIV, rule I of the new Procedure Code corresponding to Section 376 of the old Code. We do not think that the circumstance that the defendants were not aware of the institution of the suit when they made their application in the Sompeta Munsif's Court would affect the plaintiffs' right to proceed with their suit find to enforce their rights as they stood on the date of the suit,
6. There is a further ground on which we think that the deposit in this case is not valid. The mortgagors took possession of the property in May 1905 without discharging the mortgages, although according to the provisions of exhibits A, 0, D and E, the mortgagees were entitled to remain in possession of the property as security for the amounts due on these bonds. They were not justified in doing so, They were bound to restore possession to the plaintiffs and to allow them be remain in possession before making a deposit under Section 83 to similar circumstances the Bombay High Court hold in Ram Sonji v. Krishnaji I.L.R (1903) 26 Bom. 312 that the deposit was premature and invalid. In that case the mortgagor made the deposit without putting the mortgagee in possession which be was entitled to if the debt was not paid on a certain date. Chandravarkar, J., delivering the judgment of the Court observes: 'The mortgagor having committed a default, the mortgagee became entitled be possession on that date. The mortgagee did not, however, get possession until the 3rd April 1898; but before that date, i.e., on the 19th March 1898, the mortgagor had deposited the mortgage amount in Court under Section 83. But the mortgagor could not defeat the right of possession which had accrued be the mortgagee by making a tender of the mortgage amount on the 19th March 1898, as, according be the consent decree, the right to redeem could accrue only after the mortgagor had delivered possession be the mortgagee. The tender made on the 19th March was under the circumstances premature and the provisions of sections 83 and 84 cannot apply to the facts of the case.
Following the Full Bench ruling in Tani Bhagwan v. Hari bin Bkawani (1887) PJ 315 and Malhar Gopal Kulkarw v. Anandram valad Hukumchand (1889) P J 51 we reverse the decree of the lower Appellate Court.
7. We think, concurring with the Bombay High Court, that Section 83 presupposes that the mortgagor, when he propose be take action under Section 83, has ft valid right to redeem and is not attempting to exercise the right of redemption in a manner contrary to the provisions of the contract between the parties.
8. We are also of opinion that one order of the lower Court as to costs cannot be maintained. A mortgagee is entitled to his costs unless (shore are special reasons disentitling him to them
9. Moreover in the view we have taken of the other questions dealt with above, the plaintiffs, are clearly entitled to the whole of their costs in the lower Court. The decree of the lower Court must further be modified by directing the defendants to pay the whole amount due under exhibit A with interest on Rs. 200 from 15th August 190i up to the data of payment in the manner calculated by the lower Court and by further directing them to pay interest on the bonds exhibits C, D and E up be the date of payment calculated in the same manner. The time for payment is extended up be the end of six months from this date. The appellant is entitled to costs of this appeal calculated on the amount awarded by us.