Preliminary Decree for Redemption Where on Default of Payment of Mortgagor a
Decree for Foreclosure is Passed (Order Xxxiv, Rule 7) (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 defendant for principal and interest on the mortgage
mentioned in the plaint (such interest to be computed at the rate payable on
the principal 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 order or for the use of the defendant or which without
the 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 repeat 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 defendant which is destructive of, or permanently injurious to,
the property if 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 mortgaged.
2.
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 be adjusted against any sums paid by the defendant 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 defendant 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 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 Court shall find due and the sum or
Rs..............................for the costs of the suit awarded to the
defendant;
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 defendant 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 plaintiff, or to such person as he appoints, and the
defendant shall, if so required, re-convey or re-transfer the said property
free from the said mortgage and clear of and from all in cumbrances created by
the defendant 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 plaintiff quiet and peaceable
possession of the said property.
2.
3.
4.
5.
And
it is hereby further ordered and decreed that, in default of payment as
aforesaid, the defendant shall be at liberty to apply to the Court for a final
decree that the plaintiff 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 defendant
quiet and peaceable 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
directions as it thinks fit.
