Code of Civil Procedure, 1908. Act no. V of 1908 [21st March 1908]




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ORDER XXXI
SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND
ADMINISTRATORS

1. In all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in such property and a third person, the trustee, executor or administrator shall represent the person so interested, and it shall not ordinarily be necessary to make them parties to the suit. But the Court may, if it thinks fit, order them or any of them to be made parties.

2. Where there are several trustees, executors or administrators they shall all be made parties to a suit against one or more of them:

Provided that the executors who have not proved their testator's will, and trustees executors and administrators outside [Pakistan] need not be made parties.

3. Unless the Court directs otherwise the husband of a married trustee, administratrix or executrix shall not as such be a party to a suit by or against her.

ORDER XXXII

SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND

1. Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor.

2. - (1) Where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to us paid by the pleader or other person by whom it was presented.

(2) Notice of such application shall be given to such person and the Court after hearing his objections (if any) may make such order in the matter as it thinks fit.

3.- (1) Where the defendant is a minor, the Court on being satisfied of the fact of his minority shall appoint a proper person to be guardian for the suit for such minor.

(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.

(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.

(4) No order shall be made on any application under this rule except upon notice to minor and to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian upon notice to the father or other natural guardian of the minor, or, where there is no father or other natural guardian, to the person in whose case the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under the sub-rule.

[(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continues as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional Court and any proceedings in the execution of a decree.]

4. - (1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit:

Provided that the interest of such person is not adverse to that of the minor and that of the minor and that he is not, in the case of a next friend, a defendant or, in the case of a guardian for the suit, a plaintiff.

(2) Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers for reasons to be recorded, that it is for the minor's welfare that another person be permitted to act or be appointed, as the case may be.

(3) No person shall without his consent be appointed guardian for the suit.

(4) Where there is no other person fit and willing to act as guardian for the suit, the Court may appoint any of its officers to be such guardian, and may direct that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne either by the parties or by any one or more of the parties to the suit, or out of any fund in Court in which the minor is interested, and may give directions for the repayment or allowance of such costs as justice and the circumstances of the case may require.

5. - (1) Every application to the Court on behalf of a minor, other than an application under rule 10, sub-rule (2) shall be made by his next friend or by his guardian for the suit.

(2) Every order made in a suit or on any application before the Court in or by which a minor is in any way concerned or affected, without such minor being represented by a next friend or guardian for the suit, as the case may be, may be discharged and, where the pleader of the party at whose instance such order was obtained knew, or might reasonably have known, the fact of such minority, with costs to be paid by such pleader.

6.-(1) A next friend or guardian for the suit shall not, without the leave of the Court receive any money or other movable property on behalf of a minor either-

a) by way of compromise before decree or order or


b) under a decree or order in favour of the minor.

(2)Where the next friend or guardian for the suit has not been appointed or declared by competent authority to be guardian of the property of the minor, or, having been so appointed or declared, is under any disability known to the Court to receive the money or other movable property the |Court shall if it grants him leave to receive the property require such security and give such directions as will in its opinion, sufficiently protect the property from waste and ensure its proper application.

7.-(1) No next friend or guardian for the suit shall without the leave of the Court expressly recorded in the proceedings enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.

(2) Any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor.

8.-(1) Unless otherwise ordered by the Court a next friend shall not retire without first procuring a fit person to be put in his place and giving security for the costs already incurred.

(2) The application for the appointment of a new next friend shall be supported by an affidavit showing the fitness of the person proposed and also that he has no interest adverse to that of the minor.

9. - (1) Where the interest of the next friend of a minor is adverse to that of the minor or where he is so connected with a defendant whose interest is adverse to that of the minor as to make it unlikely that the minor's interest will be properly protected by him, or where he does not do his duty, or, during the pendency of the suit, ceases to reside within [ Pakistan] or for any other sufficient cause application may be made on behalf of the minor or by a defendant for his removal; and the Court, if satisfied of the sufficiency of the cause assigned may order the next friend to be removed accordingly and make such other order as to costs as it thinks fit.

(2) Where the next friend is not a guardian appointed or declared by an authority competent in this behalf and an application is made by a guardian so appointed or declared, who desires to be himself appointed in the place of the next friend, the Court shall remove the next friend unless it considers for reasons to be recorded by it that the guardian ought not to be appointed the next friend of the minor and shall thereupon appoint the applicant to be next friend in his place upon such terms as to the costs already incurred in the suit as it thinks fit.

10. - (1) On the retirement removal or death of the next friend of a minor, further proceedings shall be stayed until the appointment of a next friend in his place.

(2) Where the pleader of such minor omits within a reasonable time to take steps to get a new next friend appointed, any person interested in the minor or in the matter in issue may apply to the Court for the appointment of one, and the Court may appoint such person as it thinks fit.

11. - (1) Where the guardian for the suit desires to retire or does not do his duty, or where other sufficient ground is made to appear, the Court may permit such guardian to retire or may remove him, and may make such order as to costs as it thinks fit.

(2) Where the guardian for the suit retires, dies or is removed by the Court during the pendency of the suit the Court shall appoint a new guardian in his place.

12. - (1) A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application.

(2) Where he elects to proceed with the suit or application be shall apply for an order discharging the next friend and for leave to proceed in his own name.


(3) The title of the suit or application shall in such case be corrected so as to read henceforth:-

"A. B., late a minor, by C.D., his next friend, but now having attained majority."

(4) Where he elects to abandon the suit or application, he shall if a sole plaintiff or sole applicant, apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant or apposite-party or which may have been paid by his next friend.

(5) Any application under this rule may be made ex parte: but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without any notice to the next friend.

13. - (1) Where a minor co-plaintiff on attaining majority desires to repudiate the suit, he shall apply to have his name struck out as co-plaintiff; and the Court, if it finds that he is not a necessary party shall dismiss him from the suit on such terms as to costs or otherwise as it thinks fit.

(2) Notice of the application shall be served on the next friend on any co-plaintiff and on the defendant.

(3) The costs of all parties of such application and of all or any proceedings theretofore had in the suit, shall be paid by such persons as the Court directs.

(4) Where the applicant is a necessary party to the suit, the Court may direct him to be made a defendant.

14. - (1) A minor on attaining majority may, if a sole plaintiff, apply that a suit instituted in his name by his next friend be dismissed on the ground that it was unreasonable or improper.

(2) Notice of the application shall be served on all the parties concerned; and the Court upon being satisfied of such unreasonableness or impropriety, may grant the application and order the next friend to pay the costs of all parties in respect of the application and of anything done in the suit, or make such other order as it thinks fit.

15. The provisions contained in rules 1 to 14 so far as they are applicable, shall extend to persons adjudged to be of unsound mind and to persons who though not so adjudged are found by the Court in inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued.

16. Nothing in this Order shall be construed to affect or in any way derogate from the provisions of any local law for the time being in force relating to suits by or against minors or by or against lunatics or other persons of unsound mind.


ORDER XXXIII

SUITS BY PAUPERS

1. Subject to the following provisions, any suit may be instituted by a pauper.

Explanation:- A person is a "pauper" when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or where no such fee is prescribed when he is not entitled to property worth [one thousand) rupees other than his necessary wearing apparel and the subject matter of the suit.

2. Every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits a schedule of any movable or immovable property belonging to the applicant with the estimated value thereof shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.

3. Notwithstanding anything contained in these rules, the application shall be presented to the Court by the applicant in person unless he is exempted from appearing in Court, in which case the application may be presented by an authorised agent who can answer all material questions relating to the application and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person.

4. - (1) Where the application is in proper form and duly presented the Court may if it thinks fit examine the applicant or his agent when the applicant is allowed to appear by agent regarding the merits of the claim and the property of the applicant.

(2) Where the application is presented by an agent, the Court may if it thinks fit order that the applicant be examined by a commission in the manner in which the examination of an absent witness may be taken.

5. The Court shall reject an application for permission to sue as a pauper -

a) where it is not framed and presented in the manner prescribed by rules 2 and 3, or
b) where the applicant is not a pauper, or
c) where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as a pauper, or
d) where his allegations do not show a cause of action, or
e) where he has entered into any agreement with reference to the subject matter of the proposed suit under which any other person has obtained an interest in such subject matter.

6. Where the Court sees no reason to reject the application on any of the grounds stated in rule, 5, it shall fix a day (of which at last ten days clear notice shall be given to the opposite party and the Government pleader) for receiving such evidence as the applicant may adduce in proof of his pauperism, and for hearing any evidence which may be adduced in disproof thereof.

7. - (1) On the day so fixed or as soon thereafter as may be convenient, the Court shall examine the witnesses (if any) produced by either party and may examine the applicant or his agent and shall make a memorandum of the substance of their evidence.

(2) The Court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application and of the evidence (if any) taken by the Court as herein provided, the applicant is or is not subject to any of the prohibitions specified in rule 5.

(3) The Court shall then either allow or refuse to allow the applicant to sue as a pauper.

8. Where the application is granted it shall be numbered and registered, and shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that plaintiff shall not be liable to pay any court-fee (other than fee payable for service of process) in respect of any petition, appointment of a pleader or other proceeding connected with the suit.

9. The Court may on the application of the defendant or of the Government pleader of which seven days clear notice in writing has been given to the plaintiff order the plaintiff to be dispaupered-

a) if he is guilty of vexatious or improper conduct in the course of the suit;


b) if it appears that his means are such that he ought not to continue to sue as a pauper; or
c) if he has entered into any agreement with reference to the subject-matter of the suit under which any other person has obtained an interest in such subject matter.

10.Where the plaintiff succeeds in the suit, the Court shall calculate the amount of court fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper; such amount shall be recoverable by the [Provincial Government] from any party ordered by the decree to pay the same, and shall be a first charge on the subject matter of the suit.

11. Where the plaintiff fails in the suit or is dispaupered, or where the suit is withdrawn or dismissed, -

a) because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay the court fee or postal charges (if any) chargeable for such service, or


b) because the plaintiff does not appear when the suit is called on for hearing.

The Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper.

[11.-A. Where the suit abates by reason of the death of the plaintiff or of any person added as a co-plaintiff the Court shall order that the amount of court fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper shall be recoverable by the Provincial Government from the estate of the deceased plaintiff.]

12. The[Provincial Government shall have the right at any time to apply to the Court to make an order for the payment of court fees under rule 10 [rule 11 or rule 11-A].

13. All matters arising between the [Provincial Government] and any party to the suit under rule 10, rule 11 [rule 11A] or rule 12 shall be deemed to be questions arising between the parties to the suit within the meaning of section 47.

[14. Where an order is made under rule 10, rule 11 or rule 11A the court shall forthwith cause a copy of the decree or order to be forwarded to the Collector, who may without prejudice to any other mode of recovery recover the amount of court fees specified therein from the person or property liable for the payment as if it were an arrear of land revenue.]

15. An order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided that he first pays the costs, (if any) incurred by the [Provincial Government] and by the opposite party in opposing his application for leave to sue as a pauper.

16. The costs of an application for permission to sue as a pauper and of an inquiry into pauperism shall be costs in the suit.




ORDER XXXIV
SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY

1. 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.

[2. 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 himup 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 -

i. that, if the defendant pays into Court the amount so found or declared due on or before 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 adjudged due in respect of subsequent costs, charges and 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 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, retransfer the property to the defendant at his cost free from the mortgage and from all encumbrances 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. - (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 -

a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree,
and if necessary, -
b) ordering him to re-transfer at the cost of the defendant the mortgaged property as directed in the said decree,
and also if necessary
c) ordering him to put the defendant in possession of the property.

(2) where payment in accordance with sub-rule (1) has not been made the Court shall on application made by the plaintiff in this behalf, pass a final declaring that the defendant and all persons claiming through or under him are debarred from all right to redeem the mortgaged property and also, if necessary, ordering the defendant to put the plaintiff in possession of the property.

(3) On the passing of a final decree under sub-rule (2) all liabilities to which the defendant is subject in respect of the mortgage or on account of the suit shall be deemed to have been discharged.

4- (1) In a suit for sale if the plaintiff succeeds the Court shall pass a preliminary decree to the effect mentioned in clauses (a), (b) and (c) (I) of sub rule (1) of rule 2, and further directing that, in default of the defendant paying as therein mentioned the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold and the proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into Court and applied in payment of what has been found or declared under or by the preliminary decree due to the plaintiff, together with such amount as may have been adjudged due in respect of subsequent costs, charges, expenses and interest, and the balance, if any, be paid to the defendant or other persons entitled to receive the same.

(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 for sale 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) In a suit for foreclosure in the case of an anomalous mortgage, if the plaintiff succeeds the Court may at the instance of any party to the suit or of any other person interested in the mortgage-security or the right of redemption pass a like decree (in liew of a decree for foreclosure) on such terms as it thinks fit, including the deposit in Court of a reasonable sum fixed by the Court to meet the expenses of the sale and to secure the performance of the terms.

(4)Where in a suit for sale or a suit for foreclosure in which sale is ordered, subsequent mortgages or persons deriving title from or subrogated to the rights of any such mortgagees are joined as parties the preliminary decree referred to in sub-rule (1) 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, form No.,10 or Form No.11 as the case may be of Appendix D with such variations as the circumstances of the case may require.

5. Where on or before the day fixed or at any time before the confirmation of a sale made in pursuance of a final decree passed under sub-rule (3) of this rule, the defendant makes payment into Court of all amounts due from him under sub-sule (1) of rule 4, the Court shall on application made by the defendant in this behalf pass a final decree or if such decree has been passed an order -

a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree,
and if necessary, -
b) ordering him to transfer the mortgaged property as directed in the said decree,
and also if necessary,-
c) ordering him to put the defendant in possession of the property.

(2) \where the mortgaged property or part thereof has been sold in pursuance of a decree passed under sub-rule (3) of this rule the Court shall not pass an order under sub-rule (1) of this rule unless the defendant in addition to the amount mentioned in sub-rule (1) deposits in Court for payment to the purchaser a sum equal to five per cent of the amount of the purchase money paid into Court by the purchaser.


Where such deposit has been made the purchaser shall be entitled to an order for re-payment of the amount of the purchase-money paid into Court by him, together with a sum equal to five percent thereof.

(3) Where payment in accordance with sub-rule (1) has not been made, the Court shall on application made by the plaintiff in this behalf pass a final decree directing that the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale be dealt with in the manner provided in sub-rule (1) of rule 4.

6. Where the net proceeds of any sale held under the last preceding rule are found insufficient to pay the amount due to the plaintiff the Court, on application by him may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance.

7.- (1) In a suit for redemption if the plaintiff succeeds the Court shall pass a preliminary decree-

a) Ordering that an account be taken of what was due to the defendant 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 -

i) that, if the plaintiff pays into Court the amount so found or declared due on or before 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 adjudged due in respect of subsequent costs, charges and expenses as provided in rule 10 together with subsequent interest on such sums respectively as provided in rule 11, the defendant shall deliver up the plaintiff or to such person as the plaintiff appoints all documents in his possession or power relating to the mortgaged property and shall if so required re-transfer the property to the plaintiff \at his cost free from the mortgage and from all encumbrances created by the defendant or any person claiming under him, or where the defendant claims by derived itle, by those under whom he claims, and shall also if necessary put the plaintiff 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 plaintiff 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 defendant shall be entitled to apply for a final decree-

a) in the case of a mortgage other than a usufructuary mortgage a mortgage by conditional sale or an anomalous mortgage the terms of which provide for foreclosure only and not for sale that the mortgaged property be sold or

b) in the case of a mortgage by conditional sale or such an anomalous mortgage as aforesaid, that the plaintiff be debarred from all rights 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 the passing of a final decree for foreclosure or sale as the case may be 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.

8.- (1) Where before a final decree debarring the plaintiff from all right to redeem the mortgaged property has been passed or before the confirmation of a sale held in pursuance of a final decree passed under sub-rule (3) of this rule, the plaintiff makes payment into Court of all amounts due from him under sub-rule (1) of rule 7, the Court shall, on application made by the plaintiff in this behalf, pass a final decree or, if such decree has been passed, an order -

a) ordering the defendant to deliver up the documents referred to in the preliminary decree,


and if necessary,-
b) ordering him to re-transfer at the cost of the plaintiff the mortgaged property as directed in the said decree,
and also if necessary,-
c) ordering him to put the plaintiff in possession of the property.

(2) Where the mortgaged property or a part thereof has been sold in pursuance of a decree passed under sub-rule (3) of this rule, the Court shall not pass an order under sub-rule (1) of this rule, unless the plaintiff in addition to the amount mentioned is sub-rule (1) deposits in Court for payment to the purchaser a sum equal to five per cent of the amount of the purchase money paid into Court by the purchaser.

Where such deposit has been made the purchaser shall be entitled to an order for re-payment of the amount of the purchase money paid into Court by him, together with a sum equal to five per cent thereof.

(3) Where payment in accordance with sub-rule (1) has not been made the Court shall on application made by the defendant in this behalf, -

a) in the case of a mortgage by conditional sale or of such an anomalous mortgage as is hereinbefore referred to in rule 7, pass a final decree declaring that the plaintiff and all persons claiming under him are debarred from all right to redeem the mortgaged property and also if necessary ordering the plaintiff to put the defendant in possession of the mortgaged property; or
b) in the case of any other mortgage, not being a usufructuary mortgage, pass a final decree that the mortgaged property or a sufficient part thereof be sold, and the proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into Court and applied in payment of what is found due to the defendant, and the balance, if any, be paid to the plaintiff or other persons entitled to receive the same]

[8.-A- Where the net proceeds of any sale held under the last preceding rule are found insufficient to pay the amount due to the defendant, the Court on application by him may, if the balance is legally recoverable from the plaintiff otherwise than out of the property sold, pass a decree for such balance]

9. Notwithstanding anything hereinbefore contained, if it appears, upon taking the account referred to in rule 7, that nothing is due to the defendant or that he has been overpaid, the Court shall pass a decree directing the defendant, if so required, to re-transfer the property and to pay to the plaintiff the amount which may be found due to him; and the plaintiff shall, if necessary, be put in possession of the mortgaged property.

[10. In finally adjusting the amount to be paid to a mortgagee in case of a foreclosure, sale or redemption, the Court shall unless in the case of costs of the suit the conduct of the mortgagee has been such as to disentitle him thereto, add to the mortgage-money such costs of the suit and other costs charges and expenses as have been properly incurred by him since the date of the preliminary decree for foreclosure sale or redemption up to the time of actual payment.

11. In any decree passed in a suit for foreclosure sale or redemption, where interest is legally recoverable, the Court may order payment of interest to the mortgagee as follows, namely:-

a) interest up the date on or before which payment of the amount found or declared due is under the preliminary decree to be made by the mortgagor or other person redeeming the mortgage -

i) on the principal amount found or declared due on the mortgage, - at the rate payable on the principal, or where no such rage is fixed, at such rate as the Court deems reasonable,
ii) on the amount of the costs of the suit awarded to the mortgagee, - at such rate as the Court deems reasonable from the date of the preliminary decree, and
iii) on the amount adjudged due to the mortgagee for costs, charges and expenses properly incurred by the mortgagee in respect of the mortgage-security up to the date of the preliminary decree and added to the mortgage money, at the rate agreed between the parties, or failing such rate, a the same rate as is payable on the principle, or failing both such rates at nine per cent per annum; and
(b) subsequent interest up to the ate of realization or actual payment at such rate as the Court deems reasonable -

i) on the aggregate of the principal sums specified in clause (a) and of the interest thereon as calculated in accordance with that clause; and

ii) on the amount adjudged due to the mortgagee in respect of such further costs charges and expenses as may be payable under rule 10.]

12. Where any property the sale of which is directed under this Order is subject to a prior mortgage, the Court may, with the consent of the prior mortgagee, direct that the property be sold free from the same giving to such prior mortgagee the same interest in the proceeds of the sale as he had in the property sold.

14. - (1) Such proceeds shall be brought into Court and applied as follows:-

first in payment of all expenses incident to the sale or properly incurred in any attempted sale;

secondly, in payment of whatever is due to the prior mortgagee on account of the prior mortgage and of cost properly incurred in connection therewith.

Thirdly in payment of all interest due on account of the mortgage in consequence whereof the sale was directed and of the cost of the suit in which the decree directing the sale was made;

Fourthly in payment of the principal money due on account of that mortgage; and

Lastly the residue (if any) shall be paid to the person proving himself to the interested in the property sold, of if there are more such persons than one, then to such persons according to their respective interests therein or upon their joint receipt.

(2) Nothing in this rule or in rule 12 shall be deemed to affect the powers conferred by section 57 of the Transfer of Property Act, 1882.

14. (1) Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order II, rule 2.

(2) Nothing in sub-rule (1) shall apply to ny territories to which the Transfer of Property Act, 1882 has not been extended.

[15. All the provisions contained in this Order which apply to a simple mortgage shall, so far as may be apply to a mortgage by deposit of title-deeds within the meaning of section 58, and to a charge within the meaning of section 100 of the Transfer of Property Act 1882]


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