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4. But not that he died on the Ist April, 1896.

5.

No. 12


Notice to Produce (General Form)

(O. 12, R. 8.)

(Title as in No. 1, supra)

Take notice that you are hereby required to produce and show to the Court at the first hearing of this suit all books, papers, letters, copies of letters and other writings and documents in your custody, possession of power, containing any entry, memorandum or minute relating to the matters in question in this suit, and particularly.

G.H., pleader [or agent] for plaintiff [or defendant].

To E.F., pleader [or agent] for defendant [or plaintiff].

APPENDIX D

DECREES


No. 1

Decree in Original Suit

(O. 20, RR. 6, 7.)

(Title)


Claim for

This suit coming on this day for final disposal before . . . . . in the presence of . . . . . . . . . for the plaintiff and of . . . . . . . . . . . . for the defendant, it is ordered and decreed that . . . . . . . . . and that the sum of Rs. . . . . . . . . . be paid by the . . . . . . . . . to the . . . . . . . . . on account of the costs of this suit, with interest thereon at the rate of . . . . . . . . . per cent, per annum from this date to date of realization.

Given under my hand and the seal of the Court, this . . . . . . . day of . . . . . . . . . 19...

Judge.


Costs of Suit

Plaintiff

Defendant

Rs.


A.

P.

Rs.



A.

P.

stamp for plaint



Do. For power

Do. Of exhibits

Pleader's fee on Rs.

Subsistence for witnesses

Commission fee

Service of process

Total

Stamp for Power



Do.for petition

Pleader's fee

Subsistence for witnesses

Service of process

Commissioner's fee

Total


No. 2

Simple Money Decree

(Section 34)

(Title)


Claim for

This suit coming on this . . . . . . . . . day for final disposal before . . . . . . . . . in the presence of . . . . . for the plaintiff and of . . . . . . . . . for the defendant; It is ordered that the . . . . . . . .do pay to the . . . .. . . the sum of Rs. . . . . . . . . . with interest thereon at the rate of . . . . . . . . . per cent per annum from . . . . . . to the date of realization of the said sum and do also pay Rs.... , the cost of this suit, with interest thereon at the rate of . . . . . . . . . per cent per annum from this date to the date of realization.

Given under my hand and the seal of the Court, this . . . . . . . . . day . . . . of . . . . 19 . . .

Judge.


Costs of Suit

Plaintiff

Defendant

Rs.


A.

P.


Rs.

A.

P.



Stamp for plaint

Do. For power

Do. Of exhibits

Pleader's fee on Rs.

Subsistence for witnesses

Commission

Serivce of process

Total


Stamp for power

Do. for petition

Pleader's fee

Subsistence for witnesses

Service of process

Commissioner's fee

Total

No. 3


Preliminary Decree for Foreclosure

(Order XXXIV, Rule 2—Where accounts are directed to be taken.)

(Title)

This suit coming on this . . . . . . . . . day, etc.; It is hereby ordered and decreed that it be referred to . . . . . . . . . . . . as this Commissioner to take the accounts following:—



(i) an account of what is due on this date to the plaintiff for principal and interest on his mortgage mentioned in the plaint (such interest to be computed at the rate payable on the principal or where no such rate is fixed, at six per cent per annum or at such rate as the Court deems reasonable);

(ii) an account of the income of the mortgaged property received up to this date by the plaintiff or by any other person by the order or for the use of the plaintiff or which without the wilful default of the plaintiff or such person might have been so received;

(iii) an account of all sums of money properly incurred by the plaintiff up to this date for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security, together with interest thereon (such interest to be computed at the rate agreed between the parties, or failing such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per cent, per annum);

(iv) an account of any loss or damage caused to the mortgaged property before this date by any act or omission of the plaintiff which is destructive of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force or by the terms of the mortgage-deed.

2. And it is hereby further ordered and decreed that any amount received under clause (ii) or adjudged due under clause (iv) above, together with interest thereon, shall first be adjusted against any sums paid by the plaintiff under clause (iii) together with interest thereon, and the balance, if any, shall be added to the mortgage-money or, as the case may be, be debited in reduction of the amount due to the plaintiff on account of interest on the principal sum adjudged due and thereafter in reduction or discharge of the principal.

3. And it is hereby further ordered that the said Commissioner shall present the account to this Court with all convenient despatch after making all just allowances on or before the . . . . day of. . . . . . . . . and that upon such report of the Commissioner being received, it shall be confirmed and countersigned, subject to such modification as may be necessary after consideration of such objections as the parties to the suit may make.

4. And it is hereby further ordered and decreed—

(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, such sum as the Court shall fined due and the sum of Rs...........for the costs of the suit awarded to the plaintiff.

(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 and from all incumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and free from all liability whatsoever arising from the mortgage or this suit and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property.

5. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff shall be at liberty to apply to the Court for a final decree that the defendant shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the schedule annexed hereto and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property; and that the parties shall be 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.

Schedule

Description of the mortgaged property

No. 3A

Preliminary Decree for Foreclosure



(Order XXXIV, Rule 2,—Where the Court declares the amount due.)

(Title)


This suit coming on this.........day, etc.; It is hereby declared that the amount due to the plaintiff on his 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 incured by the plaintiff in respect of the mortgage-security, together with interest thereon, and the sum of Rs. ........for the costs of this suit awarded to the plaintiff, making in all sum of Rs.

2. And it is hereby ordered and decreed as follows:—

(i) that the defendant do pay into Court on or before for.......day of......or any later date up to which time for payment may be extended by the Court of 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 and from all incumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and free from all liability whatsoever arising from the mortgage or this suit 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 if payment as aforesaid, the plaintiff may apply to the Court for a final decree that the defendant shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, of so required, deliver up to the plaintiff quiet and peaceable possession of the said property; and that the parties shall be 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.

Schedule


Description of the mortgaged property

No. 4


Final Decree for Foreclosusre

(Order XXXIV, Rule 3.)

(Title)

Upon reading the preliminary decree in this suit on the......day of......and further orders (if any) dated the.......day of......and the application of the plaintiff dated the.......day of.......for a final decree and after hearing the parties and it appearing that the payment directed by the said decree and orders had not been made by the defendant or any person on his behalf or any other person entitled to redeem the said mortgage;



It is hereby ordered and decreed that the defendant and all persons claiming through or under him be and they are hereby absolutely debarred and foreclosed of and from all right of redemption of and in the property in the aforesaid preliminary decree mentioned; Words not required to be deleted.

[453][and (if the defendant be in possession of the said mortgaged property) that the defendant shall deliver to the plaintiff quiet and peaceable possession of the said mortgaged property].

2. And it is hereby further declared that the whole of the liability whatsoever of the defendant up to this day arising from the said mortgage mentioned in the plaint or from this suit is hereby discharged and extinguished.

No. 5


Preliminary Decree for Sale

(Order XXXIV, Rule 4—Where accounts are directed to be taken)

(Title)

This suit coming on this......day, etc,; It is hereby ordered and decree that it be referred to as the Commissioner to take the accounts following:—



(i) an account of what is due on this date to the plaintiff for principal and interest on his mortgage mentioned in the plaint (such interest to be computed at the rate payable on the principal or where no such rate is fixed, at six per cent, per annum or at such rate as the Court deems reasonable);

(ii) an account of the income of the mortgaged property received up to this date by the plaintiff or by any other person by the order or for the use of the plaintiff or which without the wilful default of the plaintiff or such person night have been se received;

(iii) an account of all sums of money properly incurred by the plaintiff up to this date for costs, charges and expenses (other than the costs of the suit) in respect of the mortgage-security, together with interest thereon (such interest to be computed at the rate agreed between the parties, or, failing such rate, at the same rate as is payable on the principal, or, failing both such rates, at nine per cent. per annum);

(iv) an account of any loss or damage caused to the mortgaged property before this date by any act or omission of the plaintiff which is destructive of, or permanently injurious to, the property or by his failure to perform any of the duties imposed upon him by any law for the time being in force or by the terms of the mortgage-deed.

2. And it is hereby further ordered and decreed that any amount received under clause (ii) or adjudged due under clause (iv) above, together with interest thereon, shall first be adjusted against any sums paid by the plaintiff under clause (iii), together with interest thereon, and the balance, if any, shall be added to the mortgage-money or, as the case may be, be debited in reduction of the amount due to the plaintiff on account of interest on the principal sum adjudged due and thereafter in reduction or discharge of the principal.

3. And it is hereby further ordered that the said Commissioner shall present the account to this Court with all convenient despatch after making all just allowances on or before the.......day of......., and that upon report of the Commissioner being received, it shall be confirmed and countersigned, subject to such modification as may be necessary after consideration of such objections as the parties to the suit may make.

4. And it is hereby further order and decreed—

(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, such sum as the Court shall find due and the sum of Rs.......for the costs of the suit awarded to the plaintiff;

(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 mortgage and clear of and from all incumbrances 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.

5. 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 directed to be sold; and for the purposes of such sale the plaintiff shall produce before the Court, or such officer as it appoints, all documents in his possession or power relating to the mortgaged property.

6. And it is hereby further order and decreed that the money realised by such sale shall be paid into Court and shall be duly applied (after deduction therefrom 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 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, and that the balance, if any, shall be paid to the defendant or other persons entitled to receive the same.

7. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be sufficient or 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.

Schedule

Description of the mortgaged property.

No. 5A

Preliminary Decree for Sale



(Order XXXIV, Rule 4,—When the Court declares the amount date.)

(Title)


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 of 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 cost, 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 and from all incumbrances 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, it 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 sufficeint part thereof shall be directed to be sold; and for the purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints all documents in his possession of 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 applied (after deduction herefrom 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 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, and that the balance, if any, shall be paid to the defendant or other persons entitled to received the same.

5. And it is hereby further ordered and decreed that, if the money realised by such sale such 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 buy 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.

Schedule


Description of the mortgaged property

No. 6


Final Decree for Sale

(Order XXXIV, Rule 5)

(Title)

Upon reading the preliminary decree passed in this suit on the. . . . . . . . . day of. . . . . . . . . and further orders (if any) dated the. . . . . . . . . .day of. . . . . . . . . .and the application of the plaintiff dated the. . . . . . . . . day of. . . . . . . . . .for a final decreed and after hearing the parties and it appearing that the payment directed by the said decree and orders has not been made by the defendant or any person on his behalf or any other person entitled to redeem the mortgage;



It is hereby ordered and decreed that the mortgaged property in the aforesaid preliminary decree mentioned or a sufficient part thereof be sold, and that for the purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints all documents in his possession or power relating to the mortgaged property.

2. And it is hereby further ordered and decreed that the money realised by such sale shall be paid into the Court and shall be duly applied (after deduction therefrom of the expenses of the sale) in payment of the amount payable to the plaintiff under the aforesaid preliminary decree and under any further orders that may have been passed in this suit and in payment of any amount which the Court may have adjudged due to the plaintiff for such costs of the suit including the costs of this application 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 and that the balance, if any, shall be paid to the defendant or other persons entitled to receive the same.

No. 7

Preliminary Decree for Redemption where on Default of Payment by Mortgagor a Decree for Foreclosure is Passed



(Order XXXIV, Rule 7.—Where accounts are directed to be taken.)

(Title)


This suit coming on this. . . . . . . . . day, etc.; It is hereby ordered and decreed that it be referred to as the Commissioner to take the account following:—

(i) an account of what is due on this date to the defendant for principal and interest on the mortgage mentioned in the plaint (such interest to be computed at the rate payable on the principal or where no such rate is fixed, at six per cent per annum or at such rate as the Court deems reasonable);

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