Preliminary Decree For Foreclosure (order Xxxiv, Rule 2) (where Accounts Are Directed To Be Taken - Legal Draft

1. This suit coming on

this................. day, etc.; It is hereby ordered and decreed 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 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 willful 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.1.2.

And

it is hereby further ordered and decreed that may 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 dispatch 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 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 said mortgage and clear of and from all

encumbrances 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 peace a be possession of the said property.1.2.3.4.5.

And

if 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 peceable 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

direction as it thinks fit.