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Nibaran Chandra Haldar Vs. Parbati Charan Naskar and - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in60Ind.Cas.454
AppellantNibaran Chandra Haldar
RespondentParbati Charan Naskar And; Bhusan Chandra Tanti and ors.
Excerpt:
transfer of property act (iv of 1882), section 83 - notice of deposit, service of--duty to court. - .....reduced rate. upon appeal, the district judge has allowed interest at the contract rate up to the date of suit. it is not necessary, however, to investigate whether the court was competent to restrict interest at the contract rate up to the date of suit only, because we are of opinion that the view taken by the court of first instance as to the scope of sections 83 and 84 is erroneous.2. section 83 contemplates a deposit to satisfy the mortgage. section 84 provides that 'when the mortgagor or such other person as aforesaid has...deposited in the court under section 83 the amount remaining due on the mortgage, interest on the principal money shall cease...as soon as the mortgagor or such other person as aforesaid has done all that has to be done by him to enable the mortgagee to take.....
Judgment:

Asutosh Mookerjee, Acting C.J.

1. This is an appeal on behalf of the defendant in a suit lo enforce a mortgage security. In the Court of first instance it was pleaded that a deposit had been made under Section 83 of the Transfer of Property Act. The Court overrated the contention that the deposit was valid, because it found that the service of notice on the mortgagee had not been proved. The Court thereupon made a decree for the principal sum with interest at a reduced rate. Upon appeal, the District Judge has allowed interest at the contract rate up to the date of suit. It is not necessary, however, to investigate whether the Court was competent to restrict interest at the contract rate up to the date of suit only, because we are of Opinion that the view taken by the Court of first instance as to the scope of Sections 83 and 84 is erroneous.

2. Section 83 contemplates a deposit to satisfy the mortgage. Section 84 provides that 'when the mortgagor or such other person as aforesaid has...deposited in the Court under Section 83 the amount remaining due on the mortgage, interest on the principal money shall cease...as soon as the mortgagor or such other person as aforesaid has done all that has to be done by him to enable the mortgagee to take such amount out of Court.' It is plain that the second paragraph of Section 83 casts a duty upon the Court to cause the notice of deposit to be served upon the mortgagee and not on the mortgagor to see that the notice has been served. In the present case, the mortgagor made the deposit as required by law and carried out the prescribed requirements in connection therewith. It is not necessary for him to prove that the Court did its duty and served the notice on the mortgagee. As no question was raised as to the sufficiency of the amount deposited, the Court of first instance should have dismissed the suit. We are, however, not in a position to make that decree, because the point was not urged by the present appellant in the lower Appellate Court.

3. The result is, that the decree of the District Judge is set aside and that of the Court of first instance restored. There will be no order as to the costs of this Court or the lower Appellate Court.

4. The appellant will be at liberty to deposit the decretal amount within three months from the date of service on him of notice of arrival of the record in the lower Court.

Ernest Fletcher, J,

5. I agree.


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