Civil Procedure Code, 1908, Section 47 -- Execution - Objection - Decree for specific performance - Delivery of possession - Plea regarding mortgage - Rights of mortgagee if any remain protected in accordance with law and such plea cannot be used by JD to resist delivery of possession to DH - Moreover, no objection relating to pendency of a revenue suit, interim injunction..........
Civil Procedure Code, 1908, Section 52, 53, Order 21 -- Execution - Money decree - Attachment of property - Attachment in execution does not extinguish prior encumbrances - An attachment is always subject to existing charges or mortgages - There is no prohibition to attachment merely because property is mortgaged - Mere existence of a mortgage cannot constitute a valid..........
Evidence Act, 1872, Section 101 -- Burden of proof - Recovery suit - Agricultural loan - Execution of relevant documents before plaintiff bank and also availing of loan amount and creation of equitable mortgage is not at all disputed by defendant - However, defendant in his defence stated that he deposited certain part payment but bank has not given any receipt to that..........
Civil Procedure Code, 1908, Order 22, Rule 3, 4 -- Death of a party - Substitution of LRs - Suit for passing of mortgage decree - In case of death of any of affected parties after preliminary decree and during pendency of final decree, whose interests are likely to be affected by drawal of final decree, substitution of his/her legal heir is compulsory and mandatory...........
Civil Procedure Code, 1908, Order 34, Rule 7 -- Usufructuary mortgage - Redemption - Final decree - Mortgagee of usufructuary mortgage would not be entitled to file an application for final decree either for sale of property or to debar mortgagor from out right to redeem property - Such a right to file a final decree application is conferred upon mortagagee only for other..........
Specific Relief Act, 1963, Section 28 -- Agreement to sell of property under mortgage - Plaintiff even knowing this fact filed suit for specific performance - It was not his case that he will get the sale deed executed only after redemption of mortgage - Court while passing conditional decree granted 3 months time to deposit the balance sale consideration - Decree holder..........
Transfer of Property Act, 1882, Section 60 -- Mortgage - Redemption sought by transferee mortgagor - Extinguishment of right to redeem - Decree of foreclosure passed in a suit filed by mortgagee will not extinguish right of mortgagor to redeem land because he was not impleaded as a party in suit though he had purchased part of mortgaged property by virtue of registered..........
Transfer of Property Act, 1882, Section 67 -- Mortgage - Decree for foreclosure - Non-impleadment of purchaser who purchased property from mortgagor before filing of suit for foreclosure, renders decree for foreclosure as non-est and void...........
Civil Procedure Code, 1908, Order 1, Rule 9 -- Mortgage - Plaintiff purchased property under mortgage much before filing of suit for foreclosure - Once plaintiff purchased property, equity of redemption is part of title as an owner and he can seek redemption of the suit land - Non impleadment of plaintiff renders decree for foreclosure as non est and void...........
Civil Procedure Code, 1908, Order 21, Rule 58 -- Execution - Mortgage decree - Claim petition is not maintainable U.O.21.R.58 CPC once mortgage decree is passed against mortgaged property...........
