JUDGMENT : P.K. Mohanti, J. - This is a plaintiff's appeal against a decree of affirmance arising out of a suit for redemption of a mortgage with possession. 2. The plaintiff's case was that he mortgaged the suit land with the defendants for Rs. 450/- on 29-1-1971 and executed a usufructuary mortgage bond on that date. According to the terms of the bond, the mortgagees would remain in possession of the property and enjoy the usufructs thereof in lieu of interest and that in any year before the end of the month of Chaitra the mortgagor would be entitled to redeem the mortgage on payment of principal amount without interest. On 30tn and 31st March, 1973, the plaintiff offered the principal sum of Rs. 450/- to the defendants, but they refused to accept the same. On 2-4-1973, he sent a pleader's notice by registered post requesting the defendants to accept the money and allow him to redeem the mortgage, but they refused to accept the notice. Then the plaintiff filed a petition under section 83 of the Transfer of Property Act in the Court of the Munsif, Bhubaneswar and with the permission of the Court deposited the mortgage amount of Rs. 450/- by Chalan No. 12 dated 18-4-1973. The defendants appeared in Court and refused to accept the amount in deposit on a false allegation that they had purchased the property from the plaintiff. The plaintiff alleged that the defendants have unlawfully retained possession of the property and they are liable to pay compensation for the same. 3. The suit was resisted by defendant No. 1 alone on the ground that subsequent to the mortgage the plaintiff, by a written agreement dated 7-4-1972, had agreed to sell the suit land along with other lands in his favour for a consideration of Rs. 2625/- and that thereby the right of redemption was lost and be became the owner of the property. It was alleged that out of the consideration of Rs. 2625/- the plaintiff received a sum of Rs. 1675/- on the date of agreement and out of the balance of Rs. 950/- it was agreed that a sum of Rs. 225/- would be adjusted towards defendant No. 1's share of the mortgage money and the balance of Rs. 725/- would be received by the plaintiff at the time of registration of the sale deed. 1675/- on the date of agreement and out of the balance of Rs. 950/- it was agreed that a sum of Rs. 225/- would be adjusted towards defendant No. 1's share of the mortgage money and the balance of Rs. 725/- would be received by the plaintiff at the time of registration of the sale deed. But in spite of repeated offers by defendant No. 1 the plaintiff avoided to execute and register the sale deed. 4. Both the Courts below dismissed the suit on the finding that the right of redemption had been extinguished by act of parties and the plaintiff had no cause of action to bring the suit. The appellate Court also held that the defendant No. 1 having continued to remain in possession of the land and having been ever ready and willing to purchase the land on the basis of the agreement dated 7-4-1972, he is entitled to the benefit of the doctrine of part performance as laid down in section 53-A of the Transfer of Property Act. 5. The findings of the Courts below are assailed in this appeal on the contentions that there was no extinction of the equity of redemption and that since the written agreement does not show that defendant No. 1 was allowed to continue in possession in pursuance of the agreement, section 53-A of the Transfer of Property Act has no application. 6. According to section 60 of the Transfer of Property Act the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee to deliver possession of the same. In the present case, the mortgagor applied under section 83 of the Transfer of Property Act and deposited in Court the amount of the mortgage-money, but the mortgagees refused to accept the same. Thus, there was a valid tender of the mortgage-money and the plaintiff-mortgagor is entitled to restoration of the possession by virtue of section 60 of the Transfer of Property Act. 7. The defence contention was that the right of redemption had been extinguished by the deed of agreement (Ext. C/2) executed by the plaintiff in favour of defendant No. 1. A contract of sale as defined in section 54 of the Transfer of Property Act does not, of itself, create any interest in or charge on the property. 7. The defence contention was that the right of redemption had been extinguished by the deed of agreement (Ext. C/2) executed by the plaintiff in favour of defendant No. 1. A contract of sale as defined in section 54 of the Transfer of Property Act does not, of itself, create any interest in or charge on the property. The right of a mortgagor in the property usufructuarily mortgaged by him is tangible immovable property within the ambit of paragraph 3 of section 54 of the Transfer of Property Act and transfer of such a right can be made only by a registered instrument. Till the sale is made by a registered instrument, the plaintiff continues to remain the mortgagor and the defendants continue to remain the mortgagees. Ext. C/2 being only an agreement for sale, it cannot extinguish the right of redemption. The question of extinction of the right of redemption can arise only on the execution and registration of a sale deed but not before. The Courts below erred in law in holding that the right of redemption was extinguished by the contract of sale. 8. The first appellate Court also fell into an error in holding that the defendants were entitled to the benefit of section 53-A of the Transfer of Property Act. This section clearly requires that the transferee has either to be put in possession or has to continue in possession "in part performance of the agreement." There are no words in Ext. C/2 to indicate that defendant No. 1 was put in possession or allowed to continue in possession "in pursuance of the agreement." There is no recital in Ext. C/2 to show that the plaintiff had constituted defendant No. 1 as owner of the property in supersession of the mortgage. It specifically provides that defendant No. 1's share of the mortgage money would be adjusted at the time of registration of the sale deed after payment of the balance consideration of Rs. 725/-, that the property would be free from mortgage after registration of the sale deed and that defendant No. 1 would possess the mortgaged land as owner thereof from the day following the registration of the sale deed. Thus, Ext. C/2 does not display any transformation of defendant No. 1's possession as mortgagee into possession as owner under the agreement of sale. Thus, Ext. C/2 does not display any transformation of defendant No. 1's possession as mortgagee into possession as owner under the agreement of sale. There is also nothing to show that any act was done in furtherance of the contract which advanced the matter beyond the stage of the contract and resulted in part performance. Section 53-A of the Transfer of Property Act, therefore, has no application. I am fortified in this view by a decision reported in Thota China Subba Rao and others v. Mattapalli Raju and others AIR 1950 Federal Court 1. Mr. A.K. Rao, the learned counsel appearing for the respondents cited a decision in Ratanlal v. Kishanlal AIR 1952 Raj 141 , in support of his contention that his client is entitled to the benefit of the doctrine of part performance. In my view that decision is clearly distinguishable. In that case, the parties were prepared to take the agreement as a complete sale. In the agreement for sale the mortgagor had said "Now I have sold this house, which is under mortgage with you, for Rs. 455/- and a formal deed of sale will be executed in four days." In view of the above recital in the agreement it was held that as the mortgagees were already in possession of the property nothing was required further than to execute a deed of sale. In the present case, however, the intention of the parties was that the mortgage security would subsist till the date of execution of the sale deed and that the property would be free from mortgage only after execution of the sale deed. 9. In view of my foregoing discussions, the conclusions of the Courts below that the mortgagor's right of redemption had been extinguished and that the defendant No. 1 is entitled of the protection under section 53-A, T.P. Act cannot be supported. The plaintiff is, therefore, entitled to the reliefs sought for. 10. On 18-10-1979, the respondents filed a petition that the suit shall stand abated under section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act (Act-21 of 1972) since the suit land has been brought under consolidation operations by virtue of a notification issued under section 3 of the Act. 10. On 18-10-1979, the respondents filed a petition that the suit shall stand abated under section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act (Act-21 of 1972) since the suit land has been brought under consolidation operations by virtue of a notification issued under section 3 of the Act. In the counter filed by the appellant it is admitted that the suit land has been brought under the consolidation operations, but it is contended that section 4(4) of of the Act is not applicable to the facts of the present case. Section 4(4) of the Act provides as follows :- "Every suit and proceedings for declaration of any right or interest in any land situate within the consolidation area in regard to which proceedings could be or ought to be started under this Act; which is pending before any Civil Court, whether of the first instance or appeal, reference or revision shall, on an order being passed in that behalf by the Court before which such suit or proceeding is pending, stand abated : Provided that no such order shall be passed without giving the parties concerned an opportunity of being heard. xxx xxx xxx." It will, thus, be seen that the scope of section 4(4) of the Act is confined only to suits for declaration of any right or interest in land. In the present case, the plaintiff has sued for recovery of possession on redemption of mortgage. The transfer of interest represented by the mortgage was for the purpose of securing payment of money advanced by way of loan. Security cannot exist, after the amount of loan had been paid up or validly tendered. The mortgage-money was validly tendered to the mortgagee and he refused to accept the same. Therefore, the right of the mortgagee to remain in possession came to an end. The mortgagee is hound to deliver possession of the mortgaged property to the mortgagor and to deliver to him the mortgage deed and other documents relating to the mortgaged property. No question of declaration of any right or interest in land is involved in the suit. I am, therefore, of the view that section 4(4) of Act 21 of 1972 is not applicable to the present suit. 11. In the result, the appeal is allowed with costs throughout and the decisions of the Courts below are reversed. No question of declaration of any right or interest in land is involved in the suit. I am, therefore, of the view that section 4(4) of Act 21 of 1972 is not applicable to the present suit. 11. In the result, the appeal is allowed with costs throughout and the decisions of the Courts below are reversed. The plaintiff's suit be decreed as prayed for. Final Result : Allowed