JUDGMENT

King, J - This is an application tinder Section 115, Civil Procedure Code, for revision of an order passed by the learned Munsif of Musafirkhana in a suit for redemption of a mortgage. The plaintiff obtained a preliminary decree for redemption on the 26th January 1923, on payment of Rs. 262-12-0. In April 1926, the decree-holder sent Rs. 256-12-0 by money-order to the mortgagee, mentioning that Rs. 6 had been deducted on account of rent due from the mortgagee to the decree-holder, and that the amount was sent in payment of the sum specified by the Court for redemption of the mortgage. The mortgagee refused to accept the set off of Rs. 6 for rent, and sent a money-order of Rs. 6 to the dearee-holder, but retained the balance of the money sent to him by money-order. The mortgagee, however, appropriated this sum in satisfaction of other debts, which he alleged were due to him from the decree-holder. The learned Munsif has held that he could not take into account the payment of money made out of Oourt by the decree-holder to the mortgagee, since under the terms of Order 34, Rule 7, Clause (c) the plaintiff is bound to pay the amount into Oourt.

2. The learned Counsel for the applicant has argued that the plaintiff pleaded an adjustment out of Court, and that the Munsif failed to exercise a proper jurisdiction in refusing to take evidence on the point whether or not there was a whole pr partial adjustment out of Court.

3. It is clear that under Order 84, Rule 7, Clause (c) the money should be paid into Court and it is clear that the Legislature has laid some stress upon this point. Section 92 of the Transfer of Property Act, 1882, which contained the provisions subsequently incorporated in Order 34, Rule 7, ran as follows:

By the plaintiff paying to the defendant or into Court the amount so due, etc. In Order 34, Rule 7, Clause (c), the words "to the defendant or" have been omitted which clearly show that the Legislature intended that the plaintiff should pay the money into Court only, and should not pay the money out of Court to the defendant.

4. If the payment is in fact made out of Court to the defendant, who accepts it in satisfaction of his decretal money, then I think the Court could give effect to such agreement or satisfaction undur the terms of Order 23, Rule 3, but in the present case the defendant has not appropriated the amount towards the payment of the redemption money, but in satisfaction of other debts. Prima facie there has been no agreement or satisfaction, and I am not prepared to hold that the learned Munsif was bound to take evidence for the purpose of deciding whether or not there had, in fact, been an adjustment (as alleged by the plaintiff) from which the defendant had subsequently resiled. If the Court were bound to enter upon such an enquiry, simply because the plaintiff alleges an adjustment out of Court, this would stultify the statutory provision that the payment must be made into Court. I dismiss the application with costs.