1. These revision petitions are connected and can be disposed of together.

2. The main revision petition is no. 1021/1124. The facts have been indicated correctly in the petition itself as follows.

"the first defendant in o. S no. 244 of 1111 before the district munsiff's court of attingal is the revision petitioner. The counter petitioner who is decree holder in the present case attached the mortgage amount deposited by the first defendant who is the decree holder in o. S. No. 91 of 1099 in the same court. The revision petitioner raised this amount by mortgaging the same property to his wife and others agreeing to hand over the possession of the property to them after taking delivery of the property from the court. The revision petitioner is only an agent who made the deposit on behalf of the mortgagees. The attachment was impeached on the ground that the money does not belong to the revision petitioner. The court below dismissed the petition put in by the petitioner and allowed the attachment to stand"

3. Along with that revision application the petitioner had filed another petition, C. M. P. No. 337/1124, Praying that further execution of the decree in o. S. No. 244/1111 should be stayed till the disposal of the same. That petition was disposed of by this court by the following order:

"this application is opposed by mr. G. Viswanatha ayyar who takes notice. The petition is granted on condition that the petitioner furnishes security for the decree amount to the satisfaction of the lower court within two weeks from this date"

however, The petitioner could not furnish security within the stipulated period and he moved the court below by c. M. P. No. 17854/24 for an extension of time by two days. The munsiff rejected that petition observing that the "high court has allowed only two weeks from 6th mithunam 1124". C. R. P. No. 6/25 is against this order.

4. The learned munsiff's order rejecting c. M. P. No. 17854/24 is perfectly correct, For he was clearly incompetent to extend the period fixed by this court for furnishing security. C. R. P. No. 6/25 is devoid of any substance and is therefore, Dismissed with costs.

5. The problem arising for solution in c. R. P. No. 1021/24 is a simple one and it is this. Whether the amount deposited by the petitioner in o. S. No. 91/1099 for the express purpose of entitling him to

recover possession of the mortgaged properties in execution of that redemption decree and lying in court deposit could be considered or deemed to be assets belonging to him available for attachment by his judgment - creditor in o. S no. 244 of 1111. In our view its solution depends upon a proper appreciation of the real nature of a deposit made by a decree - holder in court on account of the redemption price payable by him under his redemption decree. We are quite clear that the decision of this question in this case should be against the attaching creditor.

6. The amount deposited by the petitioner in court is the redemption price payable by him as decree - holder. The payment or deposit in court of the same is a condition precedent to the working out of his rights under the decree, I. E., To his recovering possession of mortgaged properties in execution. The deposit was, Therefore, Clearly earmarked for payment to the mortgagee - defendant in the suit. On the date of the deposit the decree - holder became entitled in law not only to recover possession of the mortgaged properties as if the decree was one for possession but also to hold the mortgagee defendant answerable for mesne profits if kept out of possession. The following observation made by the learned judges of the madras high court who decided the case in vairappa thevan v. Subbiah thevan 44 i. C. 251 are helpful in understanding the true character of a redemption - decree:

"it is not seriously disputed that a decree for redemption is practically a decree for possession subject to the condition of paying a certain amount fixed by the court. Therefore, When the amount has been paid the mortgagor is entitled to possession and the retention of possession by the mortgagee is that of a wrongdoer under 0. 34 r. 1 (a) the moment the amount ascertained by the preliminary decree is paid into court the mortgagor acquires right to the property. There is nothing more to be done by way of adjustment"

if the redemption decree does not provide for payment of such mesne profits a fresh suit to recover the same is maintainable. That is the view taken by the cochin high court in ousephunni v. Ahamad 25 cochin 227 as also by some of the indian high courts. The rights and liabilities of the parties to a redemption decree being such it necessarily follows that the redemption price when deposited should be deemed to have become money belonging to the mortgagee. The depositor decree - holder cannot except with the consent of the defendant seek to withdraw the same from court or otherwise deal with it. It is clear, Therefore, That such an amount lying in court deposit could not be treated as money lying to the credit of the depositor decree - holder, So that it could be deemed to be available for attachment by his creditors.

7. Our attention was drawn at the time of hearing to the decision of the travancore high court in kunjunni pothuval v. Sankaran narayana panickar 28 t. L. J. 633 wherein justice sankarasubba iyer sitting as a single judge is seen to have held that money deposited in court in a redemption suit by the mortgagor for payment to the mortgagee does not become the property of the mortgagee unless the latter has signified his willingness to accept the amount so deposited in full discharge of the amount due under the mortgage. In that case the learned judge upheld the right of a creditor to attach before judgment an amount deposited by his debtor in a suit for redemption filed by him. It is not necessary for us in this case to pronounce upon the correctness or otherwise of that decision, For it is clearly not applicable to the facts of this case. The attachment sought in that case was of an amount deposited by the mortgagor plaintiff before decree in a redemption suit in repayment of the mortgage money. It was not an amount ascertained and fixed by the decree, As in this case, As the redemption price payable by the mortgagor to the mortgagee in order to enable him to recover possession of the mortgaged properties and deposited in court in compliance with the terms of the decree. A deposit of mortgage money made along with an application under s. 81 of the cochin transfer of property act (s. 83 of the indian act) or when filing a suit for redemption stands on a different footing from a deposit of the redemption price fixed by court. A deposit of the former kind, Having regard to its very nature, Will have to be acquiesced in or agreed to by the mortgagee before the money deposited could be said to have become his. In the case of a deposit of redemption price in execution the mortgagee - defendant has no option either to accept or reject the deposit. If the deposit is of the full amount payable under the terms of the decree on account of redemption price as in the instant case it is a valid payment into court on his account and earmarked for payment to him. The deposit, If complete, Is binding on the mortgagee - defendant. The decisions cited before us at the time of argument relating to deposit made under s. 82 of the transfer of property act have no bearing on the question in hand. An amount deposited on account of redemption price is by its very nature not an amount either realised in execution or paid into court on account of a decree - debt. No crediting order by court is necessary to make the deposit "ear - marked" for payment to the mortgagee, As was held necessary in krisha bhagavathar v. Ramakrisha panickar 16 t. L. J. 173 in respect of a deposit by a garnishee of an attached amount. No notice of the deposit to the mortgagee is necessary either.

8. Mr. Madhavan nayar, The learned advocate for the counter - petitioner, Brought to our notice at the time of argument the fact that the redemption price fixed under the decree in o. S. No. 91 of 1099 took in the value of certain improvements made by the mortgagee defendant and that in respect of those improvements the decree had allowed the mortgagee an option for removing the same. He argues, Therefore that the redemption price deposited in court by the decree - holder could not be deemed to have become the money of the defendant mortgagee before the latter had made his election. The decree in o. S. No. 91 of 1099 is not before us and we are not, Therefore, In a position to ascertain what exactly are the terms of that decree. Even if we assume that the decree contains such a provision, That is a totally irrelevant circumstance, For so far as the decree - holder is concerned he has no option but to deposit in court the full amount of the redemption price as a pre - requisite for entitling him to take out execution of the decree. When delivery is sought by the decree - holder in execution after such deposit, If the mortgagee intimates to the executing court his decision to remove his improvements instead of accepting their value and removes the same, Then the title of that portion of the redemption price in deposit which represents the value of his improvements may revert back to the mortgagor decree holder; but till the moment the mortgagee makes his election and removes the improvements in pursuance thereof, The entire redemption price in deposit continues as money the title to which vests exclusively in him. It is clear therefore that the redemption price deposited by the decree - holder in o. S. No. 91 of 1099 - the correctness or validity of the deposit is not a matter of controversy between the parties - is not an amount that could be attached in execution of the decree in o. S. No. 244/1111.

9. It was also argued before us by mr. Madhavan nayar that in case the court was of the opinion that the deposit amount belonged not to the revision petitioner but to his mortgagee, The defendant in o. S. No. 91/1099, The petitioner was not competent to raise any objection to the attachment as according to him, The proper person to object to the attachment was the defendant in o. S. No. 91/1099, The owner of the money, And not the petitioner who never had any authority to act for him. There is no force in this contention either. We find from the execution records that the amount was sought to be attached as money belonging to the petitioner and not to the mortgagee - defendant in o. S no. 91/1099. Both attachment order as well as the notice in connection with the attachment were issued to him. On receipt of the same he entered appearance and objected to the attachment. In fact he was invited by court to come forward and ventilate his objections, If any. He is seen to have raised objection as the person who actually made the deposit on behalf of the mortgagees of the property who had furnished him with funds to make the deposit. In our view as the person who actually deposited the amount in court he was perfectly entitled to object to the attachment effected as if the money belonged to him. It may, However, Be remarked that it is not quite clear whether this revision is competent and the proper remedy open to the petitioner is not an appeal.

mr. Madhavan nayar did not raise any objection to the maintainability of the revision application on that ground. The petitioner's advocate mr. Narayanan nayar maintains that this revision is in order. Since the parties are not in conflict with regard to this matter we do not wish to deal with it any further, For even otherwise, We are competent to convert this revision into an appeal. The proper forum to which the appeal lies is this court and no question of limitation or non - payment of court fee arises.

10. Revision petition no. 1021/24, Therefore, Succeeds. It is allowed and the attachment levied by the court below at the instance of the counter - petitioner over the redemption price lying in court deposit in o. S no. 91/1099 is hereby dissolved. The counter - petitioner will pay to the petitioner his costs in this

revision.

petition allowed.