Preliminary Decree for Sale
[Plaintiff......Sub
or derivative mortgage,
vs.
Defendant No.1.....
Mortgagor.
Defendant No.2....
Original mortgagee.]
(Order XXXIV, rule
4.)
(Title)
1.
This
suit coming on this day, etc.; It is hereby declared that the amount due to
defendant No.2 on his mortgage calculated up to this day of is the sum of Rs.
for principal, the sum of Rs. for interest on the said principal, the sum of
Rs. for costs, charges and expenses (other than the costs of the suit) in
respect of the mortgage-security together with interest thereon and the sum of
Rs. for the costs of the suit awarded to defendant No.2, making in all the sum
of Rs.
(Similar
declarations to be introduced with regard to the amount due from defendant No.2
to the plaint)] in respect of his mortgage)
1.
2. And it is hereby
ordered and decreed as follows:--
i.
that
defendant No.1 do pay into Court on or before the said day of or any later date
up to which time for payment may be extended by the Court the said sum of Rs.
due to defendant No.2.
(Similar declarations to be introduced with regard to the amount due to the
plaintiff, defendant No.2 being at liberty to pay such amount.)
i.
i.
ii.
that,
on payment of the sum declared due to defendant No.2 by defendant No.1 in the
manner prescribed in clause 2 (i) 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 and defendant No.2 shall bring into Court ail documents in
their possession or power relating to the mortgaged property in the plaint
mentioned, and all such documents (except such as relate only to the sub
mortgage) shall be delivered over to defendant No.1, or to such person as he
appoints, and defendant No.2 shall, if so required, re-convey or re-transfer
the property to defendant No.1 free from the said mortgage clear of and from
all in cumbrances created by defendant No.2 or any person claiming under him or
any person under whom he claims, and free from all liability arising from the
mortgage or this suit and shall, if so required, deliver up to defendant No.1
quiet and peaceable possession of the said property; and
iii.
that,
upon payment into the Court by defendant No.1 of the amount due to defendant
No.2, the plaintiff shall be at liberty to apply for payment to him of the sum
declared due to him together with any subsequent costs of the suit and other
costs, charges and expenses as may be payable under rule 10, together with such
subsequent interests as may be payable under rule 11, of Order XXXIV of the
First Schedule to the Code of Civil Procedure, 1908, and that the balance, if
any, shall then be paid to defendant No.2; and that if the amount paid into the
Court be not sufficient to pay in full the sum due to the plaintiff, the
plaintiff shall be at liberty (if such remedy is open to him by the terms of
the mortgage and is not barred by any law for the time being in force) to apply
for a personal decree against defendant No.2 for the amount of the balance.
1.
2.
3.
And
it is further ordered and decreed that if defendant No.2 pays into Court to the
credit of this suit the amount adjudged due to the plaintiff, the plaintiff
shall bring into the Court all documents, etc.[as in sub-clause (ii) of clause
2].
4.
And
it is hereby further ordered and decreed that, in default of payment by
defendants Nos.1 and 2 as aforesaid, the plaintiff may apply to the Court for a
final decree for sale! and on such application being made the mortgaged
property or a sufficient part thereof shall be directed to be sold; and that
for the purposes of such sale the plaintiff and defendant No.2 shall produce
before the Court or such officer as it appoints, all documents in their
possession of power relating to the mortgaged property.
5.
And
it is hereby further ordered and decreed that the money realised by such sale
shall be paid into Court and be duly applied (after deduction there from of the
expenses of the sale) first in payment of the amount due to the plaintiff as
specified in clause 1 above with such costs of the suit and other 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, and that the balance, if
any, shall be applied in payment of the amount due to defendant No.2; and that,
if any balance be left, it shall be paid to defendant No.1 or other persons
entitled to receive the same.
6.
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 amounts payable to the
plaintiff and defendant No.2, the plaintiff or defendant No.2 or both of them,
as the case may be, shall be at liberty (if such remedy is open under their
respective mortgages and is not barred by any law for the time being in force)
to apply for a personal decree against defendant No.2 or defendant No.1 (as the
case may be) for the amount of the balance.
7.
And
it is hereby further ordered and decreed that, if defendant No.2 pays into
Court to the credit of this suit the amount adjudged due to the plaintiff, but
defendant No.1 makes default in payment of the amount due to defendant No.2,
defendant No.2 shall be at liberty to apply to the Court for a final decree for
foreclosure or sale (as the case may be)-- (declarations in the ordinary form
to be introduced according to the nature of defendant No.2's mortgage and the
remedies open to him there under).
8.
And
it is hereby further ordered and decreed that the parties are at liberty to
apply to the Court as they may have occasion, and on such application or
otherwise the Court may give such directions as it thinks fit.
