Preliminary Decree for Foreclosure (Order Xxxiv, Rule 2) (Where Accounts are
Directed to be Taken.)
(Title)
1. This suit coming on
this................. day, etc.; It is hereby ordered and decreed 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 plaintiff for principal and interest
on his mortgage mentioned in the plaint (such interest to be computed at the
rate payable on the principal or where no such rate as the Court deems
reasonable);
ii.
an
account of the income of the mortgaged property received up to this date by the
plaintiff or by any other person by the order or for the use of the plaintiff
or which without the willful default of the plaintiff or such person might have
been so received;
iii.
an
account of all sums of money properly incurred by the plaintiff up to this date
for costs, charges and expenses (other than the costs of the suit) in respect
of the mortgage-security, together with interest 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 principal, 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 plaintiff 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.
1.
2.
And
it is hereby further ordered and decreed that may 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 plaintiff under
clause (iii) together with interest thereon, and the 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 plaintiff on account of interest on the principal sum
adjudged due and thereafter in reduction or discharge of the principal.
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
allowances 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 defendant do pay into Court 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 Court shall find
due, and the sum of Rs........................for the costs of the suit awarded
to the plaintiff;
ii.
that,
on such payment and on 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 expenses 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
plaintiff shall bring into Court all documents in his possession or power
relating to the mortgaged property in the plaint mentioned, and all such
documents shall be delivered over to the defendant, or to such person as he
appoints, and the plaintiff shall, if so required, re-convey or re-transfer the
said property free from the said mortgage and clear of and from all
encumbrances created by the plaintiff or any person claiming under him or any
person under whom he claims and free from all liability whatsoever arising from
the mortgage or this suit and shall, if so required, deliver up to the
defendant quiet and peace a be possession of the said property.
1.
2.
3.
4.
5.
And
if is hereby further ordered and decreed that, in default of payment as
aforesaid, the plaintiff shall be at liberty to apply to the Court for a final
decree that the defendant shall thenceforth stand absolutely debarred and
foreclosed of and from all right to redeem the mortgaged property described in
the Schedule annexed hereto and shall, if so required, deliver up to the
plaintiff quiet and peceable possession of the said property; and that the
parties shall be 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
direction as it thinks fit.
