JUDGMENT :

The petitioners are defendants 3 to 6 in O.S.No.4 of 2021 pending on the files of the Principal Sub Court, Thrissur. The first respondent herein has filed the suit seeking a decree for recovery of an amount of Rs.57,50,000/- with 18% interest from the defendants, charged on the plaint schedule property. As per the averments in the plaint, defendants 1 and 2 had joined a kuri conducted by the plaintiff and had availed the prized kury amount after executing necessary documents. Later, when the plaintiff demanded more security for the amount, the title deed of the first petitioner was deposited and an equitable mortgage created by deposit of title deeds. Defendants 1 and 2 are not made parties to this original petition. The first petitioner is the third defendant in the suit. Petitioners 2 to 4 are arrayed as defendants 4 to 6, alleging that, subsequent to the deposit of title deeds, first petitioner had created a settlement deed in their favour. The petitioners' case before the trial court is that the third respondent is suffering from bipolar disease and had entered into a sale agreement with one Hammeed. Although the agreement was terminated subsequently, the title handed over to Hammeed during the subsistence of the agreement was not returned. The plaintiff in collusion with Hammeed had filed the suit on the strength of that document. According to the petitioners, the first petitioner had not deposited any title deed or created equitable mortgage with respect to the plaint schedule property.

2. In the suit, the petitioners filed I.A.No.4 of 2021, seeking permission to deposit the entire plaint claim and to return the original of the title deed deposited by the first petitioner. The first respondent opposed the prayer, contending that the documents can be released only after the decree passed in the suit is satisfied. By Ext.P8 order, the trial court dismissed the application, upholding the objection of the first respondent. Hence, this original petition.

3. Learned Counsel for the petitioner contended that, the petitioners having volunteered to deposit the entire plaint claim, the trial court ought to have released the title deeds. Instead the trial court took a hyper technical view by relying on Section 60 and 83 of the Transfer of Property Act, 1882 completely overlooking the court's inherent power to grant any relief under Section 151 of CPC.

4. Learned Counsel for the first respondent contended that the impugned order being well reasoned, warranted no interference in exercise of the jurisdiction under Article 227. The decisions in Padam Sen v. State of U.P. [AIR 1961 SC 218], State of Rajasthan and another v. M/s. Ferro Concrete Construction Pvt. Ltd [(2009) 12 SCC 1] and Manjeri Municipality, Manjeri v. A.M. Mohammed Ali [ILR 2015 (2) Kerala 69] are relied on to contend that the inherent power saved by Section 151 of the Code is not intended to be exercised over the substantive rights which a litigant possesses. Reference is made to Sections 60 and 83 of the Transfer of Property Act to point out that the learned Sub Judge had rightly held that an application for return of title deeds by the mortgagor has to be filed before institution of the suit for enforcement of the mortgage and even there, the mortgagor should volunteer to deposit the entire amount. It is submitted that in the instant case, the petitioners had approached the court after institution of the suit and their offer was to deposit the amount conditionally. Hence, the trial court had rightly rejected the request for release of the title deed.

5. Section 58 defines mortgage as the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. As per Section 58(f), mortgage by deposit of title deeds takes place when a person delivers to a creditor or his agent a d