1. The decree-holder is the appellant. The decree is for redemption of a mortgage. The 1st defendant-respondent is the mortgagee. The 2nd defendant was impleaded as a person having some interest in the mortgage right. Defendants 3 to 6 were persons who were residing in the mortgage property under the 1st defendant the appeal relates to the claim of the decree-holder for mesne profits from the date of deposit of the mortgage amount till the date of delivery of the property. The decree awards mesne profit at the rate of Rs. 75 and 50 paras of paddy per year from the date of deposit the mortgage amount. The decree-holder deposited the mortgage amount on 8-11-1124 and applied for delivery of property on 5-12-1124. Notice of deposit of the mortgage amount was served on the 1st defendant on 30-11-1125. The date fixed for return of notice was 12-3-1125. On that date the 1st defendant put in a petition to the effect that he surrendered possession of the property. As the decree-holder did not get actual possession of the property on account of the obstruction of defendants 2 to 6 she sought delivery of the property through Court. The Amin could give delivery of the property to the decree-holder only with the help of the police, and the property except the building thereon was delivered on 29-4-1125. The decree-holder claims mesne profits from 8-11-1124, the date of deposit of the mortgage amount till 29-4-1125, the date of delivery of the property. Both the lower Courts held that the 1st defendant was liable to surrender possession of the property only on receipt of notice of the deposit of the mortgage amount and that since he surrendered possession soon after getting the notice he is not liable for mesne profits.
2. It is true that the 1st defendant was bound to surrender possession of the property only on receipt of notice of the deposit of the mortgage amount.
3. Under Section 83 of the Transfer of Property Act deposit of the mortgage amount in Court by the mortgagor will operate as a valid tender of the mortgage money only when notice of the deposit is given to the mortgagee. Order 21, Rule 1(2) of the CPC also provides for the issue of such notice. Therefore the mortgagor can claim mesne profits only from the date of service of the notice of deposit on the mortgage.
4. The further question for consideration is whether the obligation of the 1st defendant to surrender possession of the property was discharged by his putting in a petition in Court to the effect that he had surrendered possession of the property. As long as the mortgagors; decree-holder was not able to get actual possession of the property on account of the obstruction of persons who were holding the property under the 1st defendant we do not think that, the latter can be said to have surrendered possession of the property to the mortgagor by merely filing a petition in Court to the effect that he had surrendered. The obstruction of defendants 3 to 6 who were let into possession of the property by the 1st defendant made it impossible for the decree-holder to obtain possession of the property and she had to seek delivery of possession through Court, and the main was able to give delivery only with the help of the police. In the circumstances we are of opinion that the 1st defendant is liable for mesne profits till the property was actually delivered to the decree-holder, i.e, 29-4-1125. The decree-holder is therefore entitled to get proportionate mesne profits from the 1st defendant from 30-2-25 to 29-4-1125 at the rate of Rs. 75 and 50 paras of paddy per year. The orders of the lower Courts are modified and the Second Appeal is allowed to the above extent. The parties will pay and receive proportionate costs.
5. Appeal allowed.