ORDER XXXIV SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY - RULE 8, 9, 10, 11, 12, 13, 14, 15 OF CODE OF CIVIL PROCEDURE 1908

What is Final decree in redemption suit? What is Recovery of balance due on mortgage in suit for redemption? What is Decree where nothing is found due or where mortgagee has been overpaid, Costs of mortgagee subsequent to decree? What is Power of Court to direct mortgagee to pay mesne profits? What is Payment of interest? What is Sale of property subject to prior mortgage? What is Application of proceeds? What is Suit for sale necessary for bringing mortgaged property to sale? What is Mortgages by the deposit of title deeds and charges? Rule 8, 9, 10, 11, 12, 13, 14 and 15 of Order XXXIV of Code of Civil Procedure 1908

Final decree in redemption suit, Recovery of balance due on mortgage in suit for redemption, Decree where nothing is found due or where mortgagee has been overpaid, Costs of mortgagee subsequent to decree, Power of Court to direct mortgagee to pay mesne profits, Payment of interest, Sale of property subject to prior mortgage, Application of proceeds, Suit for sale necessary for bringing mortgaged property to sale and Mortgages by the deposit of title deeds and charges are defined under Rule 8, 9, 10, 11, 12, 13, 14 and 15 of Order XXXIV of Code of Civil Procedure 1908. Provisions under these Rules are:


 

Rule 8 Order XXXIV of Code of Civil Procedure 1908 "Final decree in redemption suit"

(1) Where, before a final decree debarring the plaintiff from all right to redeem the mortgaged property has been passed or before the confirmation of a sale held in pursuance of a final decree passed under sub-rule (3) of this rule, the plaintiff makes payment into Court of all amounts due from him under sub-rule (1) of rule 7, the Court shall, on application made by the plaintiff in this behalf, pass a final decree or, if such decree has been passed, an order-

(a) ordering the defendant to deliver up the documents referred to in the preliminary decree,

and, if necessary,-

(b) ordering him to re-transfer at the cost of the plaintiff the mortgaged property as directed in the said decree,

and, also, if necessary,-

(c) ordering him to put the plaintiff in possession of the property.

(2) Where the mortgaged property or a part thereof has been sold in pursuance of a decree passed under sub-rule (3) of this rule, the Court shall not pass an order under sub-rule (1) of this rule, unless the plaintiff, in addition to the amount mentioned in sub-rule (1), deposits in Court for payment to the purchaser a sum equal to five per cent. of the amount of the purchase-money paid into Court by the purchaser.

Where such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase-money paid into Court by him, together with a sum equal to five per cent. thereof.

(3) Where payment in accordance with sub-rule (1) has not been made, the Court shall, on application made by the defendant in this behalf,-

(a) in the case of a mortgage by conditional sale or of such an anomalous mortgage as is hereinbefore referred to in rule 7, pass a final decree declaring that the plaintiff and all persons claiming under him are debarred from all right to redeem the mortgaged property and, also, if necessary, ordering the plaintiff to put the defendant in possession of the mortgaged property; or

(b) in the case of any other mortgage, not being a usufructuary mortgage, pass a final decree that the mortgaged property or a sufficient part thereof be sold, and the proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into Court and applied in payment of what is found due to the defendant, and the balance, if any, be paid to the plaintiff or other persons entitled to receive the same.

Rule 8A Order XXXIV of Code of Civil Procedure 1908 "Recovery of balance due on mortgage in suit for redemption"

Where the net proceeds of any sale held under rule 8 are found insufficient to pay the amount due to the defendant, the Court, on application by him in execution, may, if the balance is legally recoverable from the plaintiff otherwise than out of the property sold, pass a decree for such balance.

Rule 9 Order XXXIV of Code of Civil Procedure 1908 "Decree where nothing is found due or where mortgagee has been overpaid"

Notwithstanding anything hereinbefore contained, if it appears, upon taking the account referred to in rule 7, that nothing is due to the defendant or that he has been overpaid, the Court shall pass a decree directing the defendant, if so required, to re-transfer the property and to pay to the plaintiff the amount which may be found due to him; and the plaintiff shall, if necessary, be put in possession of the mortgaged property.

Rule 10 Order XXXIV of Code of Civil Procedure 1908 "Costs of mortgagee subsequent to decree"

In finally adjusting the amount to be paid to a mortgagee in case Of a foreclosure, sale or redemption, the Court shall, unless in the case of costs of the suit the conduct of the mortgagee has been such as to disentitle him thereto, add to the mortgage-money such costs of the suit and other costs, charges and expenses as have been properly incurred by him since the date of the preliminary decree for foreclosure, sale or redemption up to the time of actual payment

Provided that where the mortgagor, before or at the time of the institution of the suit, tenders or deposits the amount due on the mortgage, or such amount as is not substantially deficient in the opinion of the Court, he shall not be ordered to pay the costs of the suit to the mortgagee and the mortgagor shall be entitled to recover his own costs of the suit from the mortgagee, unless the Court, for reasons to be recorded, otherwise directs.

Rule 10A Order XXXIV of Code of Civil Procedure 1908 "Power of Court to direct mortgagee to pay mesne profits"

Where in a suit for foreclosure, the mortgagor has, before or at the time of the institution of the suit, tendered or deposited the sum due on the mortgage, or such sum as is not substantially deficient in the opinion of the Court, the Court shall direct the mortgage to pay to the mortgagor mesne profits for the period beginning with the institution of the suit.

Rule 11 Order XXXIV of Code of Civil Procedure 1908 "Payment of interest"

In any decree passed in a suit for foreclosure, sale or redemption, where interest is legally recoverable, the Court may order payment of interest to the mortgagee as follows, namely:-

(a) interest up to the date on or before which payment of the amount found or declared due is under the preliminary decree to be made by the mortgagor or other person redeeming the mortgage-

(i) on the principal amount found or declared due on the mortgage, at the rate payable on the principal, or, where no such rate is fixed, at such rate as the Court deems reasonable.

and

(iii) on the amount adjudged due to the mortgagee for costs, charges and expenses properly incurred by the mortgagee in respect of the mortgage-security up to the date of the preliminary decree and added to the mortgage-money,-at the rate agreed between the parties, or, failing such rate, at such rate not exceeding six per cent. per annum as the Court deems reasonable; and

(b) subsequent interest up to the date of realisation or actual payment on the aggregate of the principal sums specified in clause (a) as calculated in accordance with that clause at such rate as the Court decrees reasonable.

Rule 12 Order XXXIV of Code of Civil Procedure 1908 "Sale of property subject to prior mortgage"

Where any property the sale of which is directed under this Order is subject to a prior mortgage, the Court may, with the consent of the prior mortgagee, direct that the property be sold free from the same, giving to such prior mortgagee the same interest in the proceeds of the sale as he had in the property sold

Rule 13 Order XXXIV of Code of Civil Procedure 1908 "Application of proceeds"

(1) Such proceeds shall be brought into Court and applied as follows :-

first, in payment of all expenses incident to the sale or properly incurred in any attempted sale

secondly, in payment of whatever is due to the prior mortgagee on account of the prior mortgage, and of costs, properly incurred in connection therewith ;

thirdly, in payment of all interest due on account of the mortgage in consequence whereof the sale was directed, and of the costs of the suit in which the decree directing the sale was made;

fourthly, in payment of the principal money due on account of that mortgage; and

lastly, the residue (if any) shall be paid to the person proving himself to be interested in the property sold, or if there are more such persons than one, then to such persons according to their respective interests therein or upon their joint receipt.

(2) Nothing in this rule or in rule 12 shall be deemed to affect the powers conferred by section 57 of the Transfer of Property Act, 1882 (4 of 1882).

Rule 14 Order XXXIV of Code of Civil Procedure 1908 "Suit for sale necessary for bringing mortgaged property to sale"

(1) Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order II, rule 2.

(2) Nothing in sub-rule (1) shall apply to any territories to which the Transfer of Property Act, 1882 (4 of 1882), has not been extended.

15. Mortgages by the deposit of title deeds and charges-

(1) All the provisions contained in this Order which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title-deeds within the meaning of section 58, and to a charge within the meaning of section 100 of the Transfer of Property Act, 1882 (4 of 1882);

(2) Where a decree orders payment of money and charges it on immovable property on default of payment, the amount may be realised by sale of that property in execution of that decree.

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