CIVIL PROCEDURE CODE: ORDER XXXIV SUITS RELATING TO MORTGAGES OF IMMOVEABLE PROPERTY

INRODUCTION:

The present Order 34 of CPC is comprised of 15 sections that are related to the procedure regarding the
suits with reference to mortgaged property. A mortgage is a debt instrument, secured by the collateral of
specified real estate property; that the borrower is obliged to pay back with a predetermined set of
payments. Mortgages are used by individuals and businesses to make large real estate purchases
without paying the entire value of the purchase up front. Sec. 58 of the Transfer of Property Act, 1882
defines mortgage as - “A mortgage is the transfer of an interest in specific immoveable property for the
purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or
future debt, or the performance of an engagement which may give rise to a pecuniary liability.” The
Order also gives the details about the suits for redemption, foreclosure, sale of the property in
mortgage. Then it discusses different types of decrees obtaining in relation to mortgage like preliminary
decrees and final decrees. It is also important due to its rule 11 which gives the details of payment of
Interest. Application of the Order 34: It is applied whenever there is suit regarding mortgaged property.
The Order 34 is applicable in the cases to obtain preliminary decree of final decrees in regard to
mortgaged property. It will come into operation whenever the mortgagor is unable to pay mortgagee the
money or whenever the mortgagee is in the position to redeem mortgaged property. It becomes active
at the time of sale of mortgage property. The order 34 is mostly used with the provisions of transfer of
property act related to the mortgaged property. Scope of the Order: The Order 34 of CPC is wider in its
scope because a huge number of the cases are being confronted by the civil courts daily regarding the
mortgaged property. The present Order is applicable in issues related to business, in Banks and in cases
related to debts, property laws and contracts in the daily routine. The Order is really successful in dealing
the issues regarding the mortgaged property. Rules given under Order 34 are; 1. Parties to suits for
foreclosure, sale and redemption. 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. “Redemption is the
process by which land that has been mortgaged or pledged is bought back or reclaimed. It is
accomplished through a payment of the debt owed or a fulfillment of the other conditions” “A procedure
by which the holder of a mortgage—an interest in land providing security for the performance of a duty
or the payment of a debt—sells the property upon the failure of the debtor to pay the mortgage debt
and, thereby, terminates his or her rights in the property.” 2. Preliminary decree in foreclosure-suit. In a
suit for foreclosure, if the plaintiff succeeds, the court shall pass a preliminary decree. A preliminary
decree: A preliminary decree on the other hand is a decree wherein the substantive legal rights have
been determined by the court but the final determination is yet to come. Such a decree will be called a
preliminary decree and when final calculations are done, it becomes a final decree. 3. Final decree in
foreclosure-suit. The mortgagee may apply for the final decree for foreclosure suit when the mortgagor
fails to pay the amount. Discharge of debt on foreclosure: the effect of final decree for foreclosure is to
invest the mortgaged property absolutely in mortgagee as the property vests in mortgagee so the
mortgagor becomes debarred from his right to redeem the property. 4. Preliminary decree in suit for
sale. The preliminary decree in suit for sale can be obtained when the mortgage is of two types; English
Mortgage Where the mortgagor binds himself to repay the mortgage money on a certain date, and
transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will
retransfer it to the mortgagor upon payment of the mortgage money as agreed, the transaction is called
an English mortgage. Simple Mortgage Where, without delivering possession of the mortgaged property,
the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly
that in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause
the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in
payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a
simple mortgagee. Preliminary decree for Sale: A suit for the mortgaged property can only be brought
where the mortgage is an