Order XXXIV Rule 8: Final decree in redemption suit

(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 repayment 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.] [8A Recovery of balance due on mortgage in suit for redemption. 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.]

Effective date: 1909-01-01

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