Preliminary Decree for Redemption Where on Default of Payment by Mortgagor a Decree for Sale is Passed (Order Xxxiv, Rule 7) (Where Accounts are Directed to be Taken)[CD1]
(
Title)
1. This
suit coming on this..................day, etc.; It is here by ordered and
decreed that that it be referred to............................. as the
Commissioner to take the accounts following:----
i.
an account of what is due on this date to the
defendant for principle and interest on the mortgage mentioned in the plaint (
such interest to be computed at the rate payable on the principle or where no
such rate is fixed, at six per cent per annum or at such rate as the Court
deems reasonable);
ii.
an account of the income of the mortgaged
property received up to this date by the defendant or by any other person by
the order or for the use of the defendant or which without willful default of
the defendant or such person might have been so received;
iii.
an account of all sums of money properly
incurred by the defendant up to this date for costs, charges and expenses (
other than the costs of the suit) in respect of the mortgage-security together
with interests thereon ( such interest to be computed at the rate agreed between
the parties, or, failing such rate, at the same rate as is payable on the
principle, or, failing both such rates, at nine per cent per annum
iv.
an account of any loss or damage caused to
the mortgaged property before this date by any act or omission of the defendant
which is destructive of, or permanently injurious to, the property or by his
failure to perform any of the duties imposed upon him by any law for the time
being in force or by the terms of the mortgage-deed.
2. And
it is hereby further ordered and decreed that any amount received under clause
(ii) or adjudged due under clause (iv) above, together with interest thereon,
shall first be adjusted against any sums paid by the defendant under clause
(iii) together with interest thereon, and balance, if any, shall be added to
the mortgage-money, or, as the case may be, be debited in reduction of the
amount due to the defendant on account of interest on the principal sum
adjudged due and thereafter in reduction or discharge of the principle.
3.
And it is hereby further ordered that the
said Commissioner shall present the account to this Court with all convenient
dispatch after making all just allowance on or before
the................................................ day
of.....................................and that, upon such report of the
Commissioner
being received, it shall be confirmed and countersigned, subject to such
modification as may be necessary after consideration of such objections as the
parties to the suit may make.
4. And
it is hereby further ordered and decreed --
i.
that the plaintiff do pay into Court on or
before the....................day of..............................or any later
date up to which time for payment may be extended by the Court, such sum as the
sum as the Court shall find due and the sum of Rs........................or the
costs of the suit awarded to the defendant;
ii.
that, on such payment thereafter before such
date as the Court may fix of such amount as the court may adjudge due in
respect of such costs of the suit and such costs, charges and expensed as may
be payable under rule 10, together with such subsequent interest as may be
payable under rule 11, of order XXXIV of the First Schedule to the Code of
Civil Procedure, 1908, the defendant shall bring into Court all documents in
his possession or power relating to the mortgaged
(The
First Schedule Appendix D.-Decrees)
No 2 or both of them as the case may be shall be at
liberty (when such remedy is open under the terms of their respective mortgages
and id not barred by any law for the time being in force) to apply for a
personal decree against defendant No 1 for the amounts remaining due to them
respectively
5. And
it id hereby further ordered and decreed that, in default of payment as
aforesaid, the defendant may apply to the Court for a final decree for the sale
of the mortgaged property; and on such application being made, the mortgaged
property or a sufficient part there of shall be directed to be sold; and for
the purposes of such sale the defendant shall produce before the Court or such
officer as it appoints, all documents in his possession or power relating to
the mortgaged property.
6. And
it is hereby further ordered and decreed that the money realised by such sale
shall be paid into Court and shall be duly applied (after deduction there from
of the expenses of the sale) in payment of the amount payable to the defendant
under this decree and under any further orders that may be passed in his suit
and in payment of the amount payable to the defendant under this decree and
under any further orders that may be passed in his suit and in payment of any
amount which the Court may adjudge due to the defendant in respect of such
costs of the suit and such costs, charges and expenses as may be payable under
rule 10, together with such subsequent interest as may be payable under rule
10, together with such subsequent interest as may be payable under rule 11, of
Order XXXIV of the First Schedule to the Code of Civil Procedure, 1903 and that
the balance, if any, shall be paid to the plaintiff or other persons entitled
to receive the same.
7. And
it is hereby further ordered and decreed that, if the money realised by such
sale shall not be sufficient for payment in full of the amount payable to the
defendant as aforesaid, the defendant shall be at liberty (where such remedy is
open to him under the terms of his mortgage and is not barred by any law for
the time being in force) to apply for a personal decree against the plaintiff
for the amount of the balance; and that the parties are at liberty to apply to
the Court from time to time as they may have occasion, and on such application
or otherwise the Court may give such directions as it thinks fit.
[CD1]Preliminary Decree for Redemption Where on Default of Payment by Mortgagor
a Decree for Sale is Passed (Order Xxxiv, Rule 7) (Where Accounts are Directed
to be Taken)
 (Where Accounts are Directed to be Taken)){kind=link}
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