Preliminary Decree for Sale (Order XXXIV, Rule 4) ( When the Court Declares
the Amount Due.)
(Title)
1. This suit coming on
this.................. day, etc.; It is hereby declared that the amount due to
the plaintiff on the mortgage mentioned in the plaint 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) properly
incurred by the plaintiff in respect of the mortgage-security, together with
interest thereon, and the sum of
Rs.............................................for the costs of the suit
awarded to the plaintiff, making in all the sum or Rs.
2. And it is hereby
ordered and decreed as follows:--
i. that the defendant 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, the said sum of Rs.;
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 an from all in cumbrances created by the plaintiff
or any person claiming under him or any person under whom he claims and shall,
if so required, deliver up to the defendant quiet and peaceable possession of
the said property.
3. And it is hereby
further ordered and decreed that, in default of payment as aforesaid, the
plaintiff 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 thereof shall be produce before the Court or such officer
as it appoints all documents in his possession or power relating to the
mortgaged property.
4. And it is hereby
further ordered and decreed that the money realised by such sale shall be paid
into Court and shall be duly applies (after deduction there from of the
expenses of the sale) in payment of the amount payable to the plaintiff under
this decree and under any further orders that may be passed in this suit and in
payment of any amount which the Court may adjudge due to the plaintiff of any
amount which the Court may adjudge due to the plaintiff 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 XXXIVV of the First Schedule to the Code of Civil Procedure, 1908,
and that the balance, if any, shall be paid to the defendant or other persons
entitled to receive the same.
5. 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 plaintiff as
aforesaid, the plaintiff 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 defendant 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.
