A mortgagor is not entitled to withdraw the deposit made under Section 83 of the Transfer of Property Act, 1882, even if the mortgagee refuses to accept the notice of deposit, as long as the mortgagee expresses willingness to accept the deposit and deliver possession of the mortgaged property.

P. K. MOHANTI, J.

( 1 ) THIS Civil Revision arises in the following circumstances: the opposite party had mortgaged 11. 37 acres of land for Rs. 10,000 with the petitioner by executing a registered document on 20-5-69 and had delivered possession of the lands. The document is called a mortgage by conditional sale. The terms were that the mortgagee was to possess and enjoy the mortgaged lands for five years i. e. till 20-5-74 and thereafter whenever the mortgagor paid rs. 10,000 within a period of seven years, the mortgage was to stand discharged and the mortgagee was to deliver possession of the land to the mortgagor free from all encumbrances and to return back the mortgage-deed. Otherwise the sale would be absolute. In May, 1975 the mortgagor-opposite party deposited the sum of Rs. 10,000 to the account of the petitioner-mortgagee and prayed for delivery of possession. Thereupon the Court issued a notice of the deposit to the petitioner as required under Section 83, Transfer of property Act. The process server reported that the notice was tendered to the husband of the petitioner but he refused to accept the same. The Court accepted the service of notice on the petitioner as sufficient and set her ex parte. On 11-2-76 the petitioner appeared in Court and filed a verified statement expressing her willingness to accept the deposited amount in full satisfaction of her dues and offered to deliver possession of the mortgaged lands to the opposite party. She also filed a petition for setting aside the ex parte order passed against her. On the same day the opposite party filed a petition to the effect that in view of the impending legislation with regard to the-matters of redemption of mortgage by operation of law, he felt that he should not proceed with the case and wanted to withdraw the same. The matter was posted to 23-2-76 for hearing when the petitioner filed the mortgage deed dated 20-5-69 in pursuance of the terms of Section 83 of the T. P. Act. After hearing the parties the learned Subordinate Judge permitted the opposite party to withdraw the deposit on the grounds that-

(i) the petitioner had not filed a verified petition as required under section 83 of the Transfer of Property Act, (ii) the amount due on the mortgage had not been mentioned in the verified statement filed by the petitioner; and (iii) the petitioner's refusal to accept the notice was as good as denying to accept the deposited amount. Aggrieved by this order, the mortgagee has come up in revision.

( 2 ) SECTION 83 of the T. P. Act provides that at any time after the principal money payable in respect of any mortgage has become due end before a suit for redemption of the mortgaged property is barred, the mortgagor or any person entitled to institute such suit may deposit in court in which he might have instituted such suit to the account of the mortgagee the amount remaining due on the mortgage. Upon the deposit of such money, the Court has to issue a notice of the deposit to the mortgagee and the latter is entitled to accept the money so deposited in full discharge of the mortgage. The section further provides that where the mortgagee is in possession of a mortgaged property the court must before paying to him the amount so deposited, direct him to deliver possession of the property to the mortgagor and at the cost of the mortgagor either to re-transfer the mortgaged property to the mortgagor or to such third person as the mortgagor may direct.

( 3 ) ON A reference to the records I am satisfied that the mortgagee did all that was required of her. She expressed; her willingness to accept the deposit and filed the mortgage deed in court. She also offered to deliver possession of the mortgaged land to the mortgagor. As indicated earlier, the notice of deposit was not personally served on her. Even as suming that she refused to accept the notice the inference does not necessarily follow that she refused to accept the deposit. In support of his findings the l