Law: Civil Procedure Code (1908)

Section: 4, 14

(a) Issues-Framing of issues-Issues can be framed only on basis of allegations made by parties in their pleadings-Civil Proce dure Code (V of 1908), O. XIV, rr. 1 & 3. (b) Civil Procedure Cole (V of 1908), O. XXXIV, rr. 4 & 14 read with Form 5-A, Appendix D, First Sched.-Suit relating to mortgage-Suit for preliminary decree for sale of mortgaged property-Plaintiff seeking sale of defendant's property mort gaged in its name and also for decree for balance of its claim on basis of promissory note-Suit, in circumstances, held, falls under O. XXXIV, r. 4 and not barred by provisions of O. XXXIV, r. 14. The plaintiff bank had advanced a loan to defendant against the security of a promissory note and a mortgage and it sought the sale of the mortgaged property and further that if the sale proceeds of the mortgaged property were not sufficient to meet its claim, it sought a decree for the balance from the defend ant. It was contended on behalf of the plaintiff that the suit was under Order XXXIV, rule 4, Civil Procedure Code, 1908 and the decree sought was in terms of Form 5-A of Appendix D to First Schedule of the Civil Procedure Code, 1908. It was argued on behalf of the defendant that the suit, as framed, was not maintainable and that it would lead to inequitable and unjust consequences if the claim was decreed ; as the plaintiff could only obtain a money decree in such suit, if it wanted to sell the mortgaged property it had to file a fresh suit for the sale of the same under Order XXXIV, rule 4. It was further stressed that Order XXXIV, rule 14 prevented the plaintiff from obtaining a preliminary decree for the sale of the mortgaged property. Held : On a plain reading of Order XXXIV, rule 14, Civil Procedure Code, 1908 it appears that its object is to prevent the mortgagee from selling the mortgaged property without surrendering his rights as a mortgagee. Thus, if a plaintiff, who has a mortgage of the defendants' property, obtains a money decree simpliciter against the defendant and then sells the mortgaged property in execution of his money decree, the result would be that whilst retaining his mortgage, he would be able to sell the…