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Report No. 178

6. Order XXXIV of the Code of Civil Procedur.- dispensing with the age old procedure of a preliminary decree:

In the cases of suits based on mortgage, Order XXXIV of the Code of Civil Procedure contains a two stage procedure of a preliminary decree and then a final decree. This has led to lot of delay in the case of disposal of mortgage suits.

Such a two stage procedure is prescribed in the case of three types of suits based on mortgage:

(I) In the case of suits for fore-closure, Order XXXIV Rule 2 requires that the court pass a preliminary decree:

(a) Ordering an account of what was due to the plaintiff at the date of suit towards the principal and interest, the costs of suit, if any, and other costs (with interest on such costs), or

(b) Declaring the amount due on that day and

(c) directing:

(i) that, if the defendant pays into court the amount so found (i.e. under cl.(a) after accounts are taken) or declared du.- pay the amount within six months from the date on which the court confirms and countersigns the accounts taken under clause (a) or from the date of and on which such amount is declared due under clause (b), as the case may be, (and thereafter pay such 43 amount as may be adjudged due in respect of subsequent costs, charges or expenses as provided in Rule 10, together with subsequent interest on such sums respectively as provided in Rule 11), the plaintiff shall deliver up to the defendant etc., all documents in his possession or power and if necessary, retransfer the property.

(ii) that, if payment of the amount found due or declared due under or by the preliminary decree is not made on or before the date so fixed, or the defendant fails to pay, within such time as the court may fix, the amount adjudged due in respect of subsequent costs, charges, expenses and interest, the plaintiff shall be entitled to apply for a final decree debarring the defendant from all rights to redeem the property.

Order XXXIV Rule 3 then provides for the passing of a final decree in the foreclosure suit.

(II) Likewise, in a suit for sale, Order XXXIV.R.4 provides for the passing of a preliminary decree and under Rule 5 for the passing of a final decree.

(III) Again, in the case of a suit for redemption, Order XXXIV Rule 7 provides for the passing of a preliminary decree and under Rule 8 for the passing of a final decree.

In as much as the two stage procedure has been the cause of unnecessary and avoidable delays, the Commission is of the view that the procedure may be modified and that the court should straightaway pass a single decree in each of these three types of mortgage suits.

The Kerala High Court has got these Rules amended in the year 1990 and in that state, mortgage suits are now being disposed of faster than before.

Accordingly, we propose to replace Order XXXIV of the Code of Civil Procedure in full by order XXXIV as applicable in the State of Kerala as follows:

Recommendations for amending various Enactments - Both Civil and Criminal Back

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