APPENDIX C

ISCOVERY, INSPECTION AND ADMISSION

No.1

ORDER FOR DELIVERY OF INTERROCATORIES

(O. 11, R. 1.)

In the Court of…………

Civil Suit No. ……….of………19…. .

A. B Plaintiff,

against

C. D. E. F and G. H. Defendants.

Upon hearing ………and upon reading the affidavit of………. filed the............. day o……..19…. ; It is ordered that the……… be at liberty to deliver to the………interrogatories in writing, and that the said………. do answer the interrogatories as prescribed by Order XI, Rule 8, and that the costs of this application be……………. .

No. 2

INTERROGATORIES

(O. 11, R. 4.)

(TITLE AS IN NO. 1, SUPRA.)

Interrogatories on behalf of the above-named [Plaintiff or defendant C D.] for

the examination of the above-named [defendants E.F. and G.H. or plaintiff].

1. Did not, etc.

2. Has not, etc. etc. etc. etc.

[The defendant E. F is required to answer the interrogatories numbered……….].

[The defendant G. H. is required to answer the interrogatories numbered……….].

No. 3

ANSWER TO INTERROGATORIES

(O. 11, R. 9.)

(TITLE AS IN NO. 1, SUPRA.)

The answer of the above-named defendant E.F., to the interrogatories for his examination by the above-named plaintiff.

In answer to the said interrogatories, 1, the above-named E.F., make oath and say as follows. -

1.

Enter answer to interrogatories in paragraphs numbered consecutively.

2.

3. I object to answer the interrogatories numbered ………….[state grounds of objection].

No. 4

ORDER FOR AFFIDAVIT AS TO DOCUMENTS

(O.11, R. 12.)

(TITLE AS IN NO. 1 SUPRA.)

Upon hearing ………..; It is ordered that the ………do within ……..days from the date of this order, answer on affidavit stating which documents are or have been in his possession or power relating to the matter in question in this suit, and that the costs of this application be……….. .

No. 5

AFFIDAVII'AS TO DOCUMENTS

(O.11, R. 13.)

(TITLE AS IN NO. 1, SUPRA.)

I, the above-named defendant C D., make oath and say as follows. -

1. I have in my possession or power the documents relating to the matters in question in this suit set forth in the first and second parts of the first schedule hereto.

2. I object to produce the said documents set forth in the second part of the first schedule hereto [state rounds of objection].

3. I have had but have not now, in my possession or power the documents relating to the matters in question in this suit set forth in the second schedule hereto.

4. The last-mentioned documents were last in my possession or power on [state when and what has become of them and in whose possession they now are].

5. According to the best of my knowledge, information and belief I have not now, and never had, in my possession, custody or power, or in the possession, custody or power of my pleader or agent, or in the possession custody or power of any other person on my behalf, any account, book of account, voucher, receipt, letter memorandum, paper or writing, or any copy of or extract from any such document, or any other document whatsoever, relating to the matters in question in this suit or any of them, or wherein any entry has been made relative to such matters or any of them, other than and except the documents set forth in the said first and second schedules hereto.

No. 6

ORDER TO PRODUCE DOCUMENTS FOR INSPECTION

(O.11, R. 14

(TITLE AS IN NO. 1, SUPRA.)

Upon hearing ……….and upon reading the affidavit of……… filed the ............ day of ………..19…. . It is ordered that the do, at all reasonable times, on reasonable notice, produce at …………, situate at…………, the following documents, namely ………….., and that the…………. be at liberty to inspect and persue the documents so produced, and to make notes of their contents. In the meantime, it is ordered that all further proceedings be stayed and that the cost of this application be………….. .

No. 7

NOTICE TO PRODUCE DOCUMENTS

(O.11, R. 16.)

(TITLE AS IN NO. 1, SUPRA.)

Take notice that the [plaintiff or defendant] requires you to produce for his inspection the following documents referred to in your [plaint or written statement

or affidavit, dated the……… day of ……….19 .... ].

[Describe documents required.]

X Y, Pleader for the

To Z, Pleader for the………..

No. 8

NOTICE TO INSPECT DOCUMENTS

(O.11, R. 17.)

(TITLE AS IN NO. 1, SUPRA.)

Take notice that you can inspect the documents mentioned in your notice of the............... day of………..19.... [except the documents numbered……….. in that notice]at [insert place of inspection] on Thursday next, the instant, between the hours of 12 and 4 O’clock.

Or, that the [plaintiff or defendant] objects to giving you inspection of documents mentioned in your notice of the ……….day of ……..19...., on the ground that [state the ground].

No. 9

NOTICE TO ADMIT DOCUMENTS (O.12, r. 3.)

TITLE AS IN NO. 1, SUPRA.)

Take notice that the plaintiff [or defendant] in this suit proposes to adduce in evidence the several documents hereunder specified, and that the same may be inspected by the defendant [or plaintiff], his pleader or agent at ………on………. between the hours of……… ; and the defendant for plaintiff is hereby required, within forty-eight hours form the last-mentioned hour, to admit that such of the said documents as are specified to be originals were respectively written, signed or executed, as they purport respectively to have been ; that such as are specified as copies are true copies; and such documents as are stated to have been served, sent or delivered were so served, sent or delivered, respectively, saving all just exceptions to the admissibility of all such documents as evidence in this suit.

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

[or defendant].

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

[Here describe the documents and specify as to each document whether it is original or a copy.]

No. 10

NOTICE TO ADMIT FACTS

(O. 12, R. 5.)

(TITLE AS IN NO. 1, SUPRA.)

Take notice that the plaintiff [or defendant] in this suit requires the defendant [or plaintiff to admit, for the purposes of this suit only, the several facts respectively hereunder specified; and the defendant [or plaintiff is hereby required, within six days from the service of this notice, to admit the said several facts, saving all just exceptions to the admissibility of such facts as evidence in this suit.

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

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

The facts, the admission of which is required, are: -

1. That M. died on the 1st January, 1890.

2. That he died intestate.

3. That N, was his only lawful son.

4. That O. died on the 1st April, 1896.

5. That O. was never married.

No. 11

ADMISSION OF FACTS PURSUANT TO NOTICE

(O. 12, R.5.)

(TITLE AS IN NO. 1, SUPRA.)

The defendant [or plaintiff in this suit, for the purposes of this suit only, hereby admits the several facts respectively hereunder specified, subject to the qualification or limitations, if any, hereunder specified, saving all just exceptions to the admissibility of any such facts, or any of them, as evidence in this suit :

Provided that this admission is made for the purposes of this suit only, and is not an admission to be used against the defendant [or plaintiff on any other occasion or by any one other than the plaintiff [or defendant or party requiring the admission].

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

[Or plaintiff]

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

Facts admitted

Qualifications or limitations, if any, subject to which they are admitted

1. That M. died on the 1st January, 1890

1.

2. That he died intestate

2.

3. That N. was his lawful son

3. But not that he was his only lawful son.

4. That O. died

4. ButnotthathediedonthelstApril,1896.

5. That O was never married

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 for agent] for defendant for 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 the date of realization.

Given-“N under my hand and the seal of the Court, this………day of …….19…. .

Judge.

Costs of Suit

Plaintiff

Defendant

1. Stamp for plaint

Rs.

A

P

Stamp for power

Rs.

A

P

2. Do. for power

Do for petition

3. Do for exhibits

Pleader’s fee

4 Pleader’s fee on Rs

Subsistence for

5.Subsistence for witnesses

Witnesses

6. Commissioner’s fee

Service of process.

7. Service of process

Commissioner’s fee.

Total

Total

HIGH COURT AMENTMENTS

Calcutta. -Cancel the table under the head “Costs of suit” in Form No. 1 and substitute therefore the following.—

Plaintiff

Amount

Defendant

Amount

Rs. A.P.

Rs. A.P.

1. Stamp for plaint.

1. Stamp for power.

2. Stamp for power.

2. Stamp for petitions and affidavits.

3 Stamp for petitions and affidavits.

3 Costs of exhibits including copies made under the Banker’s Books Evidence Act, 1891.

4. Costs of exhibits including copies made under the Banker’s Books Evidence Act, 1891.

4. Pleader’s fee.

5. Pleader’s fee on Rs.

5. Subsistence and travelling allowances of witness (including those of party, if allowed by Judge).

6. Subsistence and travelling allowance of witnesses (including those of party, if allowed by Judge).

6. Process fee.

7. Process fee.

7. Commissioner’s fees

8. Commissioner’s fees

8. Demi-paper.

9. Demi-paper.

9. Costs of transmission of records.

10. Cost of transmission of records.

10. Other costs allowed under the Code and General Rules Orders.

11. Other costs allowed under the Code and General Rules and Orders.

11. Adjournment costs not paid in case (to be deducted or added as the case may be).

12. Adjournment costs not paid in case (to be added or deducted as the case may be)

Total

Total

Gauhati.—As by the Calcutta High Court.

Orissa.—As by the Patna High Court.

Patna.—In the Form No. I for the schedule “Costs of Suit” substitute the following. -

Plaintiff

Amount

Defendant

Amount

Rs. A. P.

Rs. A P.

1 Stamp for plaint.

1. Stamp for power.

2. Stamp for power.

2. Stamp for petition or affidavit.

3. Stamp for petition affidavit.

3. Costs for exhibits.

4. Costs for exhibits.

4. Pleader's fee.

5. Pleader's fee on Rs.

5. Subsistence-

(a) For defendant or his agent.

(b) For witnesses.

6. Subsistence-

(a) for plaintiff or his agent.

( b) for witnesses.

6. Commissioner’s fee.

7. Commissioner's fee.

7. Service of process.

8. Service for process.

8. Copying or typing charge.

9. Copying or typing charge.

Total

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 costs 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 this Court, this ……… Day of ………19….

Judge.

Costs of suit

Plaintiff

Amount

Defendant

Amount

Rs. A. P.

Rs. A P.

1. Stamp for plaint

Stamp for power

2. Do. for power

Do. for petition

3. Do. for exhibits

Pleader’s fee

4. Pleader’s fee on

Rs..

Subsistence for

witnesses

5 Subsistence for

witnesses

Service of process

6. Commissioner’s fee

Commissioner’s fee

7. Service of process

Total

Total

HIGH COURT AMENDMENTS

Calcutta.—In Form No. 2 for the “Costs of Suits” substitute the following. -

Cancel the table under the head “Costs of Suit” in Form No. 2, and substitute

Plaintiff

Amount

Defendant

Amount

Rs. A. P

Rs. A. P

1 Stamp for plaint,

1. Stamp for power.

2. Stamp for power.

2. Stamp for petition and affidavits.

3. Stamp for petitioners and affidavit.

3. Cost of exhibits including copies made under the Banker’s Books Evidence Act, 1891.

4. Costs of exhibits including copies made under the Banker’s Books Evidence Act, 1891.

4. Pleader’s fee.

5. Pleader’s fees on Rs.

5. Subsistence and travelling allowances of witnesses (including those of party if allowed by Judge).

6. Subsistence and travelling allowance, of witnesses (including those of party it allowed by Judge)

6. Process fees.

7. Process fees,

7. Commissioner’s fee.

8. Commissioner’s tees.

8. Demi paper,

9. Dime Paper.

9. Costs (if transmission of records

10. Cost of transmission of record

10. Other cost allowed under the Code and General Rules and Orders.

11 Other costs allowed under the Code and General Rules and Order.

11. Adjournment costs not paid in cash (to be, deducted or added as the case may be).

12. Adjournment costs not paid in cash (to be added or deducted as the case may be).

Total

Total

Gauhati.—As in Calcutta.

1[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 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 of 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 of account of interest on the principal sum adjudged clue 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 modifications 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………............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 pavement 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 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.

1. Subs. by Act 21 of 1929, sec. 8 and Sch., for the original Forms 3 to II.

SCHEDULE

DESCRIPTION OF THE MORTGAGED PROPERLY

No. 3A

PRELIMINARY DECREE FOR FORF-CLOSURF,

(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 incurred 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 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 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 lo, 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 peaceable possession of the said property.

3.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 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

HIGH COURT AMENDMENT

Kerala.—Omit No. 3A-

No. 4

FINAL DECREE FOR FORECLOSURE

(ORDER XXXIV, RULE 3.)

(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 decree 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 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: *[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.

HIGH COURT AMENDMENT

Kerala.—For Form No. 4 substitute.

* Words not required to be deleted.

SCHEDULE

(DESCRIPTION OF THE MORTGAGED PROPERTY)

NO. 4

DECREE FOR FORECLOSURE

(ORDER XXXIV, RULE 2.)

(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 cost of the suit) property incurred by the plaintiff in respect of the mortgage security, together with interest thereon, and the sum of Rs… … for the cost of this suit award 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 day up to which time for payment may be "tended by the Court of the said sum of Rs…………. .

(ii) that, no such payment and on payment thereafter before such date as the Court may fix, or such amount, with interest of any, 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 7 of Order XXXIV of the First Schedule to the Code of Civil Procedure, Act V of 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 all encumbrance 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 of 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 of payment as aforesaid, 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 described in the schedule annexed hereto (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 and that the whole of the liability whatsoever of the defendant upto the date mentioned in (2) (i) 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 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 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 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 counter-signed, 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 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 encumbrances created by the plaintiff of 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 ordered 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 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 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

DECEPTION OF MORTGAGED PROPERTY.

HIGH COURT AMENDMENT

Kerala.—Omit Form No. 5.

No. 5A

PRELIMINARY DECREE FOR SALE

(ORDER XXXIV, RULE 4-WHEN THE COURT DECREES AMOUNT US.

(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 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 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 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.

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 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.

5. And it is hereby further ordered and decreed that, if the money realised by such sale shall 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 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 directions as it thinks fit.

SCHEDULE

DESCRIPTION OF THE MORTGAGED PROPERTY.

HIGH COURT AMENDMENT

Kerala.—Omit Form No. SA. [13-1-1974].

No. 6

FINAL DECREE FOR SALE

(ORDER XXXIV, RULE 5)

(TITLE)

Upon reading the preliminary decree passed in this suit on the ......... I and further orders (if any) dated the………… day of………..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 has not been made by the defendant or any person on his behalf of 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.

HIGH COURT AMENDMENT

Kerala.—For Form No. 6 substitute

1:FORM

No. 6

DECREE FOR SALE

(ORDER XYXIV, RULE 3)

(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………. and the ………..day of…………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, no such payment and on payment thereafter before such date as the Court may flex, of such amount, with interest, if any, 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 7 of Order XXXIV, of the First Schedule to the Code of Civil Procedure, (Act V of 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 recovery or re-transfer the said property free from the said mortgage and clear of and all encumbrances 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, in default of payment as aforesaid, the mortgaged property described in the Schedule annexed hereto or a sufficient part thereof be sold, and that for the purpose 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.

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 deducting therefrom the expenses of the sale) in payment of the amount payable to the plaintiff under this decree and in payment of any amount, with interest, if any, which the Court may have adjudged due to the plaintiff in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 7 of Order XX-XIV, of the First Schedule to the Code of Civil Procedure (Act V of 1908) and that the balance, if any, shall be paid to the defendant or other persons entitled to receive the same.

5. And it is hereby further ordered and decree that, if the money raised by such sale shall not be sufficient for payment in full of the amount payable to the plaintiff as aforesaid, the balance, if legally recoverable from the defendant otherwise than out of the property sold, be paid by the defendant personally.

SCHEDULE

DESCRIPTION OF THE MORTGAGED PROPERTY

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