Apex Law Journal
Apex Law Journal
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Neha Goel, Advocate

Advisory Board

S.C. Khunger, Advocate

Rohit Bansal, Advocate

Varinder Singh Kanwar, Advocate

Hittan Nehra, Advocate

Judgments on Mortgage suits and Partition suits

Monday, March 22, 2010
Mortgage suits and Partition suits

Mortgage suits and Partition suits — Difference between — Held, there is a fundamental difference between mortgage suits and partition suits — In a preliminary decree in a mortgage suit (whether a decree for foreclosure under Rule 2 or a decree for sale under Rule 4 of Order 34 of the Code), the amount due is determined and declared and the time within which the amount has to be paid is also fixed and the consequence of non payment within the time stipulated is also specified — A preliminary decree in a mortgage suit decides all the issues and what is left out is only the action to be taken in the event of non payment of the amount — When the amount is not paid the plaintiff gets a right to seek a final decree for foreclosure or for sale — On the other hand, in a partition suit the preliminary decrees only decide a part of the suit and therefore an application for passing a final decree is only an application in a pending suit, seeking further progress — In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the court — In fact several applications for final decree are permissible in a partition suit — A decree in a partition suit enures to the benefit of all the co-owners and therefore, it is sometimes said that there is really no judgment-debtor in a partition decree — A preliminary decree for partition only identifies the properties to be subjected to partition, defines and declares the shares/rights of the parties — That part of the prayer relating to actual division by metes and bounds and allotment is left for being completed under the final decree proceedings — Thus the application for final decree as and when made is considered to be an application in a pending suit for granting the relief of division by metes and bounds — Therefore, the concept of final decree in a partition suit is different from the concept of final decree in a mortgage suit — Consequently an application for a final decree in a mortgage suit is different from an application for final decree in partition suits.

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