A mortgagee's failure to appear in court proceedings implies acceptance of the mortgage amount deposited, and the executing court must consider this in execution proceedings under Section 83 of the Transfer of Property Act.

ORDER :

(N. Sathish Kumar, J.)

This revision challenges the order dated 05.06.2024 passed by the learned Principal Subordinate Judge, Kancheepuram dismissing the execution petition in E.P.No.84 of 2020 filed by the petitioner thereby refusing to enforce the order passed in Tr.O.P.No.07 of 2008 on the file of the learned Principal Subordinate Judge, Kancheepuram, Kancheepuram District.

2. The brief facts leading to the filing of the present revision petition are as follows: The petitioner had executed a simple mortgage in favour of the respondent for Rs.2,00,000/- on 11.11.2005 which was registered under Doc.No.3261 of 2005. It was agreed by the petitioner under the mortgage deed to repay the said mortgage amount with interest @ 18.5 per annum. It was further agreed by the petitioner to repay the amount within a period of two years. After the period of two years, the petitioner requested the respondent to receive the mortgage amount and return the document. However, the same has not been acceded to by the respondent, which resulted in issuing a legal notice by the petitioner through his counsel on 12.12.2007.

3. Despite such legal notice, the respondent has not received the amount. Therefore, the petitioner filed an original petition in Tr.O.P.No.07 of 2008 on the file of the learned Principal Subordinate Judge, Kancheepuram, invoking Section 83 of the Transfer of Property Act, 1882, seeking the following reliefs:

(i) permission to deposit the mortgage amount with interest due and payable under the mortgage deed;

(ii) a direction to the respondent/mortgagee to deliver the petitioner/mortgagor the original simple mortgage deed dated 11.11.2005 duly cancelled and the petition B-Schedule mentioned documents of title;

(iii) a direction to the respondent/mortgagee to execute an acknowledgement in writing that any right in derogation of the mortgagor's interest transferred to the respondent/mortgagee in pursuance of the said mortgage deed dated 11.11.2005 is extinguished i.e., the simple mortgage deed is fully discharged.

4. The petitioner/mortgagor had also deposited a sum of Rs.2,77,100/-being the amount due and payable under the mortgage. Despite notice being properly served on the respondent, the respondent did not appear before the court and therefore, he was set ex parte and the learned Subordinate Judge, Kancheepuram had allowed the petition by order dated 11.04.2008. As the said order has not been implemented, the petitioner initiated an execution proceedings in E.P.No.84 of 2020 on the file of the learned Principal Subordinate Judge, Kancheepuram.

5. In the execution proceedings also, the respondent/mortgagee remained ex parte. The learned Principal Subordinate Judge had however, dismissed the execution petition mainly on the ground that, originally there was no relief sought for the execution of an acknowledgement receipt by the court in full discharge of the mortgage amount in the event the respondent/mortgagee failed to execute such a receipt. The learned Principal Subordinate Judge was of the view that without specific relief being asked for in the original petition, the execution petition is not maintainable. And further, the mortgagee has not expressed his willingness to accept the mortgage amount. Hence, placing reliance upon the order of the learned single Judge of Madurai Bench of this court dated 25.10.2019 in the case of Ponnachi Ammal v. Saraswathi Ammal [C.R.P.(PD) (MD) No.1468 of 2012], the learned Principal Subordinate Judge, Kancheepuram dismissed the Execution Petition in E.P.No.84 of 2020 by order dated 05.06.2024. Hence, this revision.

6. Heard Mr.M.R.Jothimanian, learned counsel for the civil revision petitioner and Mr.P.Muthusamy, learned counsel for the respondent.

7. The learned counsel for the petitioner would submit that it was only a simple mortgage. There is no dispute between the parties with regard to the mortgage amount and the interest payable under the simple mortgage. When the respondent had failed to a