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The Code of Civil Procedure, 1908: page 203

The Code of Civil Procedure, 1908, India Code delivered snapshot 393b8848fdfc476a, physical page 203, typed edition 77428589d4e341672ed6a3e5f663be7dec530c42d0600064ac1314302939267d. Unreviewed extraction.

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                                                         ORDER XXXIV
                                   Suits relating to mortgages of immovable property
     1. Parties to suits for foreclosure sale and redemption.—Subject to the provisions of this Code, all
persons having an interest either in the mortgage-security or in the right of redemption shall be joined as
parties to any suit relating to the mortgage.
    Explanation.—A puisne mortgagee may sue for foreclosure or for sale without making the prior
mortgagee a party to the suit; and a prior mortgagee need not be joined in a suit to redeem a subsequent
mortgage.
      1
     [2. Preliminary decree in foreclosure suit.—(1) In a suit for foreclosure, if the plaintiff succeeds,
the Court shall pass a preliminary decree—
        (a) ordering that an account be taken of what was due to the plaintiff at the date of such decree
     for—
               (i) principal and interest on the mortgage,
               (ii) the costs of suit, if any, awarded to him, and
              (iii) other costs, charges and expenses properly incurred by him up to that date in respect of
          his mortgage-security, together with interest thereon; or
          (b) declaring the amount so due at that date; and
          (c) directing—
                                                                        e
                                                                     od
              (i) that, if the defendant pays into Court the amount so found or declared due on or before
                                                               aC
          such date as the Court may fix within six months from the date on which the Court confirms and
          countersigns the account taken under clause (a), or from the date on which such amount is
          declared in Court under clause (b), as the case may be, and thereafter pays such amount as may be
                                                            di
          adjudged due in respect of subsequent costs, charges and expenses as provided in rule 10,
                                                          In
          together with subsequent interest on such sums respectively as provided in rule 11, the plaintiff
          shall deliver up to the defendant, or to such person as the defendant appoints, all documents in his
          possession or power relating to the mortgaged property, and shall, if so required, re-transfer the
          property to the defendant at his cost free from the mortgage and from all incumbrances created by
          the plaintiff or any person claiming under him, or, where the plaintiff claims by derived title, by
          those under whom he claims, and shall also, if necessary, put the defendant in possession of the
          property; and
              (ii) that, if payment of the amount found 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 right to
          redeem the property.
    (2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time,
at any time before a final decree is passed, extend the time fixed for the payment of the amount found or
declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges,
expenses and interest.
     (3) Where, in a suit for foreclosure, subsequent mortgagees or persons deriving title from, or
subrogated to the rights of, any such mortgagees are joined as parties, the preliminary decree shall
provide for the adjudication of the respective rights and liabilities of the parties to the suit in the manner
and form set forth in Form No. 9 or Form No. 10, as the case may be, of Appendix D with such variations
as the circumstances of the case may require.
     3. Final decree in foreclosure suit.—(1) Where, before a final decree debarring the defendant from
all right to redeem the mortgaged property has been passed, the defendant makes payment into Court of
all amounts due from him under sub-rule (1) of rule 2, the Court shall, on application made by the
defendant in this behalf, pass a final decree—

1. Subs by Act 21 of 1929, s. 4, for the rules 2 to 8.


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