Order XXXIV
(CPC)
Suits
relating to Mortgages of Immovable Property
Or.
34—Decree on personal covenant—No specific prayer made : Where no specific
prayer was made in the plaint for a decree on the basis of personal covenant in
the mortgage bond the Court nevertheless would be justified in passing a money
decree on the general prayer for further relieves, if there were enough
materials on record for such a personal decree.
Kadam Rasul
Vs. United Bank, India (1953) 5 DLR 290.
—A mortgage
decree, meaning of—Personal decree in a mortgage suit: A mortgage decree must
be passed in accordance with the provisions of Order 34. Any decree passed in a
mortgage suit is not necessarily a mortgage decree.
It is open
to the parties to a mortgage suit by consent, to have a decree in any form they
like. The mortgagor may well waive the benefit of the provisions of a final
decree and so also the mortgagee may relinquish his security and content
himself with a simple money decree.
Personal decree
in a mortgage suit—Nothing remains to be done after the passing of a personal
decree.
Ramoni Kansa
Lahiri Choudhury Vs. Brajendra K Roy Choudhury (1956) 8 DLR 609.
Or. 34, r. I—Suit by a
prior mortgagee— sub-mortgagee of a subsequent mortgagee, a necessary
party—Effect of omission to make subsequent mortgagee a party.
Village M
and several other villages were successively mortgaged four times to different
sets of persons. The 4th mortgagee created a sub-mortgage under his own
mortgage.
The 3rd mortgagee
in execution of a mortgage decree in a suit on his own mortgage, in which 2
prior mortgagees and the 4th mortgagee (but not the sub-mortgagee) were made
defendants, put the village M to sale and the sale proceeds were applied in
payment of the 2 prior mortgages and decretal dues of the 3rd mortgage. As
regards the 4th mortgagee, the Court held “he had no rights and interests
superior to those of the plaintiff—the 3rd mortgagee”.
Masur
Subrameina Shastri Vs. Seshama Rajia (1951)3 DLR (PC) 212.
Or.34, rr.1-16—Suits relating to
mortgage.
Application
of the rules—These rules arc based on well settled rules of equity which in the
absence of any statutory provision to the contrary should be applied to suits
on mortgages of movables also. 36 CWN 263.
—The
provisions of Or.34 do not apply to decrees pasted in accordance with award
submitted by arbitrators on reference. 1930 Lah. 116: 121 IC. 79 : 1.R. 1930
Lah. 175, nor to compromise decree, 1935 Pal. 385.
—The
provisions of this rule do not apply to a mortgage in favour of a Co-operative
Society, 1933 Nag. 211.
R. 1. Parties to suits
—The object
of Or. 34, r. It is that all claims affecting the equity of redemption should
be disposed of in one and the same Suit. 1927 PC 32 : 31 CWN 670 :45 CU 395.
—All persons
interested in the mortgage property must be made parties provided the plaintiff
has notice. 32 CU 479 Pc.
—When a
puisne mortgagee is not made party he is not bound by the decree. 38 CWN
1178, 40 A 407 PC, 42 (All) 364 PC, 42 CWN 1065, 45 CWN 705.
Or. 34. r. 14 Suit for sale.
This rule
does not apply where the mortgagee decree-holder gives up his charge under the
decree and executes it as a mere money decree. 115 IC 829.
Where the
mortgage has been declared to be a nullity and the mortgagee obtains a money
decree in lieu of what was originally considered to be a mortgage, there being
no mortgage subsisting rule 14 cannot apply. 1929 (All) 580, (39 (All) 36,
42 All. 566) Ret. on.
Under this
rule, a mortgagee, in spite of having sued for a simple money decree in respect
of a claim arising under the mortgage, is entitled to institute a suit for
sale. 119 IC 90.
This rule
prohibits the mortgagee to secure the sale of the mortgaged property without
first bringing a suit for sale. 1935 (L.ah) 672 : 16 (Lah) 640 FB.
S. 20—Suit against
a foreign company which carries on no business it Pakistan, if would lie in a
Pakistan Court—Company’s local agent, if and when will be liable.
The
plaintiff company under a contract of sale purchased certain quantity of cotton
yarn from a certain foreign company in Italy through their agent at Chittagong.
When the cotton yarn reached Chittagong from Italy the Plaintiff company on
taking delivery of them found a large shortage in the quantity of the cotton
yarn and also found that the yam supplied was not of the standard
specification.
Upon this,
after claiming compensation through the agent and that having not been paid the
plaintiff- company instituted a suit in a Sub-Judge Court at Chittagong,
impicading the foreign company as well as their agent as parties to the suit
for recovery of a certain sum of money representing ‘he total loss the
plaintiff-company was alleged to have ustained. The question that arose for
decision was whether the foreign company was carrying on their business in
Pakistan through their agent so as to enable the Court at Chittagong to have
jurisdiction to try the plaintiffs suit and whether the agent of the foreign-
company at Chittagong was liable for the amount claimed.
Held: Elements
necessary to constitute a residence, so far as a foreign company is concerned,
in order to confer jurisdiction on the Court at Chittagong being absent in this
case, the Court at Chittagong had no jurisdiction to entertain the claim as
against the foreign-company and further there is nothing to show that the
foreign company acted by the agent.
Bubna Mou
& Co. Vs. Modern Trading Co. (1960)12 DLR 261.
—Suits to be
instituted in the Court of lowest grade under whose local jurisdiction the
defendant resides and the property are situated.
Rezai Karim
Vs. AK Nurer Rahman (1962) 14 DLR 780.