[Plaintiff.......
1st Mortgage,Vs.Defendant
No.1....... Mortgagor.Defendant
No.2....... 2nd Mortgagee.](Order
XXXIV, rules 2 and 4)
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)
incurred by the plaintiff in respect of the mortgage-security with interest
thereon and the sum of Rs............ For the costs of this suit awarded to the
plaintiff, making in all the sum of Rs............(Similar
declarations to be introduced with regard to the amount due to defendant No.2
in respect of his mortgage if the mortgage-money due there under has become
payable at the date of the suit.)2.
It
is further declared that the plaintiff is entitled to payment of the amount due
to him in priority to defendant No.2 {Words not required to be deleted} [or (if
there are several subsequent mortgagees) that the several parties hereto are
entitled in the following order to the payment of the sums due to them
respectively:-].3.
And
it is hereby ordered and decreed as follows:-i.a. that defendants or
one of them do pay into Court on or before the day of or any later date up to
which time for payment has been extended by the Court the said sum of Rs. Due
to the plaintiff; andb. that defendant No.1
do pay into Court on or before the day of or any later date up to which time
for payment has been extended by the Court the said sum of Rs. Due to defendant
No.2; andi.ii.
that,
on payment of the sum declared to be due to the plaintiff by defendants or
either of them in the manner prescribed in clause (I) (a) 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 No. (who has made the payment) 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 in cumbrances created by
the plaintiff or any person claiming under him or any person under whom he claims,
and also free from all liability whatsoever arising from the mortgage or this
suit and shall, if so required, deliver up to the defendant No. (who has made
the payment) quiet and peaceable possession of the said property.(Similar
declarations to be introduced, if defendant No.1 pays the amount found or
declared to be due to defendant No.2 with such variations as may be necessary
having regard to the nature of his mortgage.)1.2.3.4. And it is hereby
further ordered and decreed that, in default of payment as aforesaid of the
amount due to the plaintiff, the plaintiff shall be at liberty to apply to the
court for a final decree-i.
{Words
not required to be deleted} [in the case of a mortgage by conditional sale or
an anomalous mortgage where the only remedy provided for in the mortgage-deed
is foreclosure and not sale] that the defendants jointly and severally 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 to the plaintiff quiet and peaceable possession
of the said property; orii.
{Words
not required to be deleted} (in the case of any other mortgage) that the
mortgaged property or a sufficient part thereof shall be sold; and that for the
purposes of such sale the plaintiff shall produce before Court or such officer
as it appoints, all documents in his possession or power relating to the
mortgaged property; andiii.
{Words
not required to be deleted} [in the case where a sale is ordered under clause 4
(ii) above] that the money realised by such sale shall be paid into Court and
be duly applied (after deduction there from 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 have been passed in this suit and in payment of the
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 applied in payment of the amount due to
defendant No.2; and that if any balance be left, it shall be paid to the
defendant No.1 or other persons entitled to receive the same; andiv.
that,
if the money realised by such sale shall not be sufficient for payment in full
of the amounts due to the plaintiff and defendant No.2, the plaintiff or
defendant No.2 or both of them, as the case may be shall be at liberty (when
such remedy is open under the terms of their respective mortgages and is not
barred by any law for the time being in force) to apply for a personal decree
against defendant No.1 for the amounts remaining due to them respectively.1.2.3.4.5. And it is hereby
further ordered and decreed-a. that if defendant
No.2 pays into Court to the credit of this suit the amount adjudged due to the
plaintiff, but defendant No.1 makes default in the payment of the said amount,
defendant No.2 shall be at liberty to apply to the Court to keep the
plaintiff's mortgage alive for his benefit and to apply for a final decree (in
the same manner as the plaintiff might have done under clause 4 above)-i. {Words not required
to be deleted} [(I) that defendant No.1 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 defendant No.2 quiet and peaceable possession of the said property;] orii. {Words not required
to be deleted} [(ii) that the mortgaged property or a sufficient part thereof
be sold and that for the purposes of such sale defendant No.2 shall produce
before the Court or such officer as it appoints, all documents in his
possession or power relating to the mortgaged property;]1.a.b.and (if on the
application of defendant No.2 such a final decree for foreclosure is passed),
that the whole of the liability of defendant No.1 arising from the plaintiff's
mortgage or from the mortgage of defendant No.2 or from this suit shall be
deemed to have been discharged and extinguished.2.3.4.5.6. And it is hereby
further ordered and decreed {Words not required to be deleted} [in the case
where a sale is ordered under clause 5 above]-i.
that
the money realised by such sale shall be paid into Court and be duly applied
(after deduction there from of the expenses of the sale) first in payment of
the amount paid by defendant No.2 in respect of the plaintiff's mortgage and
the costs of the suit in connection therewith and in payment of the amount
which the Court may adjudge due in respect of subsequent interest on the said
amount; and that the balance, if any, shall then be applied in payment of the
amount adjudged due to defendant No.2 in respect of his own mortgaged under
this decree and any further orders that may be passed and in payment of the
amount which the Court may adjudge due in respect of such costs of this suit
and such costs, charges and expenses as may be payable to defendant No.2 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 defendant No.1 or other persons
entitled to receive the same; andii.
that,
if the money realised by such sale shall not be sufficient for payment in full
of the amount due in respect of the plaintiff's mortgage or defendant No.2's
mortgage, defendant No.2 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 No.1 for the amount of the
balance.2.3.4.5.6.7. And it is hereby
further ordered and decreed 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.