Rule 1 Order XXXIV of Code of Civil Procedure 1908 "Parties to suits for foreclosure sale and redemption"
Subject to the provisions of this Code, all persons
having an interest either in the mortgage-security or in the
right of redemption shall be joined as parties to any suit
relating to the mortgage.
Explanation-A puisne mortgagee may sue for foreclosure or
for sale without making the prior mortgagee a party to the
suit; and a prior mortgagee need not be joined in a suit to
redeem a subsequent mortgage.
Rule 2 Order XXXIV of Code of Civil Procedure 1908 "Preliminary decree in foreclosure suit"
(1) In a suit for foreclosure, if the plaintiff succeeds,
the Court shall pass a preliminary decree-
(a) ordering that an account be taken of what was due to the
plaintiff at the date of such decree for-
(i) principal and interest on the mortgage,
(ii) the costs of suit, if any, awarded to him, and
(iii) other costs, charges and expenses properly incurred by
him up to that date in respect of his mortgage-security,
together with interest thereon; or
(b) declaring the amount so due at that date, and
(c) directing-
(i) that, if the defendant pays into Court the amount so
found or declared due on or before such date as the Court
may fix within six months from the date on which the Court
confirms and countersigns the account taken under clause (a)
or from the date on which such amount is declared. in Court
under clause (b), as the case may be, and thereafter pays
such amount as may be adjudged due in respect of subsequent
costs, charges and expenses as provided in rule 10, together
with subsequent interest on such sums respectively as
provided in rule 11, the plaintiff shall deliver up to the
defendant, or to such person as the defendant appoints, all
documents in his possession or power relating to the
mortgaged property, and shall, if so required, re-transfer
the property to the defendant at his cost free from the
mortgage and from all encumbrances created by the plaintiff
or any person claiming under him, or, where the plaintiff
claims by derived title, by those under whom he claims, and
shall also, if necessary, put the defendant in possession of
the property; and
(ii) that, if payment of the amount found or declared due
under or by the preliminary decree is not made on or before
the date so fixed, or the defendant fails to pay, within
such time as the Court may fix, the amount adjudged due in
respect of subsequent costs, charges, expenses and interest,
the plaintiff shall be entitled. to apply for a final decree
debarring the defendant from all right to redeem the
property.
(2) The Court may, on good cause shown and upon terms to be
fixed by the Court, from time to time, at any time before a
final decree is passed, extend the time fixed for the
payment of the amount found or declared due under sub-rule
(1) or of the amount adjudged due in respect of subsequent
costs, charges, expenses and interest.
(3) Where, in a suit for foreclosure, subsequent mortgagees
or persons deriving title from, or subrogated to the rights
of,any such mortgagees are joined as parties, the
preliminary decree shall provide for the adjudication of the
respective rights and liabilities of the parties to the suit
in the manner and form set forth in Form No. 9 or Form No.
10, as the case may be, of Appendix D with such variations
as the circumstances of the case may require.
Rule 3 Order XXXIV of Code of Civil Procedure 1908 "Final decree in foreclosure suit"
(1) Where, before a final decree debarring the defendant
from all right to redeem the mortgaged property has been
passed, the defendant makes payment into court of all
amounts due from him under sub-rule (1) of rule 2, the Court
shall, on application made by the defendant in this behalf,
pass a final decree-
(a) ordering the plaintiff to deliver up the documents
referred to in the preliminary decree,
and, if necessary,-
(b) ordering him to re-transfer at the cost or the defendant
the mortgaged property as directed in the said decree,
and also, if necessary,-
(c) ordering him to put the defendant in possession of the
property.
(2) Where payment in accordance with sub-rule (1) has not
been made, the Court shall, on application made by the
plaintiff in this behalf, pass a final decree declaring that
the defendant and all persons claiming through or under him
or debarred from all right to redeem the mortgaged property
and also, if necessary, ordering the defendant to put the
plaintiff in possession of the property.
(3) On the passing of a final decree under sub-rule (2), all
liabilities to which the defendant is subject in respect of
the mortgage or on account of the suit shall be deemed to
have been discharged.
Rule 4 Order XXXIV of Code of Civil Procedure 1908 "Preliminary decree in suit for sale"
(1) In a suit for sale, if the plaintiff succeeds, the Court
shall pass a preliminary decree to the effect mentioned in
clauses (a), (b) and (c) (i) of sub-rule (1) of rule 2, and
further directing that, in default of the defendant paying
as therein mentioned, the plaintiff shall be entitled to
apply for a final decree directing 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 has been found or declared under or by the
preliminary decree due to the plaintiff, together with such
amount as may have been adjudged due in respect of
subsequent costs, charges, expenses and interest, and the
balance, if any, be paid to the defendant or other persons
entitled to receive the same.
(2) The Court may, on good cause shown and upon terms to be
fixed by the Court, from time to time, at any time before a
final decree for sale is passed, extend the time fixed for
the payment of the amount found or declared due under
sub-rule (1) or of the amount adjudged due in respect of
subsequent costs, charges, expenses and interest.
(3) Power to decree Sale in foreclosure suit - In a suit for
foreclosure in the case of an anomalous mortgage, if the
plaintiff succeeds, the Court may, at the instance of any
party to the suit or of any other person interested in the
mortgage-security or the right of redemption, pass a like
decree (in lieu of a decree for foreclosure) on such terms
as it thinks fit, including the deposit in Court of a
reasonable sum fixed by the Court to meet the expenses of
the sale and to secure the performance of the terms.
(4) Where, in a suit for sale or a suit for foreclosure in
which sale is ordered, subsequent mortgagees or persons
deriving title from, or subjugated to the rights of, any
such mortgagees are joined as parties, the preliminary
decree referred to in sub-rule (1) shall provide for the
adjudication of the respective rights and liabilities of the
parties to the suit in the manner and form set forth in Form
No. 9, Form No. 10 or Form No. 11, as the case may be, of
Appendix D with such variations as the circumstances of the
case may require.
Rule 5 Order XXXIV of Code of Civil Procedure 1908 "Final decree in suit for sale"
(1) Where, on or before the day fixed or at any time before
the confirmation of a sale made in pursuance of a final
decree passed under sub-rule (3) of this rule, the defendant
makes payment into Court of all amounts due from him under
sub-rule (1) of rule 4, the Court shall, on application made
by the defendant in this behalf, pass a final decree or, if
such decree has been passed, an order-
(a) ordering the plaintiff to deliver up the documents
referred to in the preliminary decree,
and, if necessary-
(b) ordering him to transfer the mortgaged property as
directed in the said decree,
and, also, if necessary,-
(c) ordering him to put the defendant in possession of the
property.
(2) Where the mortgaged property or 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 defendant, 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
plaintiff in this behalf, pass a final decree directing that
the mortgaged property or a sufficient part thereof be sold,
and that the proceeds of the sale be dealt with in the
manner provided in sub-rule (1) of rule 4.
Rule 6 Order XXXIV of Code of Civil Procedure 1908 "Recovery of balance due on mortgage in suit for sale"
Where the net proceeds of any sale held under rule 5 are found insufficient to pay the amount due to the plaintiff, the Court, on application by him may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance.
Rule 7 Order XXXIV of Code of Civil Procedure 1908 "Preliminary decree in redemption suit"
(1) In a suit for redemption, if the plaintiff succeeds, the
Court shall pass a preliminary decree-
(a) ordering that an. account be taken of what was due to
the defendant at the date of such decree for-
(i) principal and interest on the mortgage,
(ii) the costs of suit, if any, awarded to him, and
(iii) other costs, charges and expenses properly incurred by
him up to that date, in respect of his mortgage-security,
together with interest thereon; or
(b) declaring the amount so due at that date; and
(c) directing-
(i) that, if the plaintiff pays into Court the amount so
found or declared due on or before such date as the Court
may fix within six months from the date on which the Court
confirms and countersigns the account taken under clause
(a), or from the date on which such amount is declared in
Court under clause (b), as the case may be, and thereafter
pays such amount as may be adjudged due in respect of
subsequent costs, charges and expenses as provided in rule
10, together with subsequent interest on such sums
respectively as provided in rule 11, the defendant shall
deliver up to the plaintiff, or to such person as the
plaintiff appoints, all documents in his possession or power
relating to the mortgaged property, and shall, if so
required, retransfer the property to the plaintiff at his
cost free from the mortgage and from all incumbrances
created by the defendant or any person claiming under him
where the defendant claims by derived title, by those. under
whom he claims, and shall also, if necessary put the
plaintiff in possession of the property; and
(ii) that, if payment of the amount found or declared due
under or by the preliminary decree is not made on or before
the date so fixed, or the plaintiff fails to pay, within
such time as the Court may fix, the amount adjudged due in
respect of subsequent costs, charges, expenses and interest,
the defendant shall be entitled to apply for a final decree-
(a) in the case of a mortgage other than a usufructuary
mortgage, a mortgage by conditional sale, or an anomalous
mortgage the terms of which provide for foreclosure only and
not for sale, that the mortgage property be, sold, or
(b) in the case of a mortgage by conditional sale or such an
anomalous mortgage as aforesaid that the plaintiff be
debarred from all right to redeem the property.
(2) The Court may, on good cause shown and upon terms to be
fixed by the Court, from time to time, at any time before
the passing of a final decree for foreclosure or sale, as
the case may be, extend the time fixed for the payment of
the amount found or declared due under sub-rule (1) or of
the amount adjudged due in respect of subsequent costs,
charges, expenses and interest.