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Madras High Court
Butchanna vs Varahalu And Ors. on 5 February, 1901
Equivalent citations: (1901) ILR 24 Mad 408
Bench: S Ayyar, Davies


JUDGMENT

1. The District Judge is in error in considering that it is not open to a mortgagor seeking redemption to assert that the mortgage has been paid off, but that if it be found by the Court that anything is due under the mortgage he is prepared to pay it, Such an alternative case is not opposed to any rule of pleading and there is really no inconsistency. As to Section 60 of the Transfer of Property Act we are unable to agree with the contention of the respondents’ Vakil that the non-tender or non-payment of the amount due upon a mortgage previous to suit is a bar to a suit ‘for redemption. It would be impracticable to make such a tender or payment in cases where there was a dispute as to the amount payable or where an account had to be taken, or where the parties seeking to redeem are other than the mortgagor. (Section 91 of the Transfer of Property Act), Consequently, in practice the objection has never been allowed. Other provisions of the Transfer of Property Act relating to redemption such as Section 92 are not consistent with the suggested interpretation of Section 60. We must therefore reverse the decree of the District Judge, and remand the appeal for him to pass a proper redemption decree, after taking an account and settling the amount due. The respondents will pay the appellant’s costs in this and in the lower Appellate Court.


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