MORTGAGE

(a) any banking company as defined in section 333 of the Companies Ordinance, which is declared by the Director of Commerce, by Notification published in the Gazette, to be an approved credit agency for the purposes of this Act;

(b) the State Mortgage and Investment Bank, the Agricultural and Industrial Credit Corporation, the Loan Board, the National Savings Bank, and the Local Loans and Development Commissioners;

(c) any other company, firm, institution, or individual for the time being declared by the Director of Commerce, by Notification published in the Gazette, to be an approved credit agency for the purposes of this Act.

(1) For the purposes of this Part –

“person entitled to notice “, in relation to a hypothecary action in respect of any land, means any person who –

” registered address ” means an address registered in accordance with the provisions of section 6 of this Act.

(2) Where a notice of seizure of any land is, after the registration of a mortgage of that land but before the registration of the lis pendens of a hypothecary action upon such mortgage, duly registered for the time being under the Registration of Documents Ordinance, the judgment creditor in the action in which such seizure was effected may register an address under section 6, and if such address is registered, shall be a person entitled to notice of the hypothecary action.

(1) Application for the registration of an address for the service of legal documents shall be made substantially in the form set out in the First Schedule to this Act.

(2) The address for service shall be registered in or in continuation of the folio in which is registered the mortgage of the land in respect of which the applicant has an interest:

Provided, however, that where such mortgage includes more than one land, it shall be sufficient if the address of the applicant is registered in the folio relating to the land in which he has an interest.

(3) Where the applicant declares in his application that a previously registered address is cancelled, the Registrar shall make a new entry in the register and cancel the registration of the previous address.

(4) The fee for registration of an address for service or for a change of such address shall be fifty cents for each address, with an addition of ten cents for each folio after the first in which the address is to be registered.

(1) Notwithstanding anything in section 34 of the Civil Procedure Code, a claim to enforce payment of the moneys due upon a mortgage may be joined to a claim in a hypothecary action, or a separate action may be brought in respect of each such remedy.

(2) In every such action the mortgagor shall be sued as defendant whether or not he is in possession of the mortgaged land at the time when the action is instituted.

(a) certifying that the lis pendens of such action has been duly registered under the Registration of Documents Ordinance as an instrument affecting the land to which the action relates, and that such registration has been effected in or in continuation of the folio in which the mortgage bond sued upon in the action was registered ;

(b) certifying that the register maintained under the Registration of Documents Ordinance or a certified extract therefrom, and all relevant entries in such register, have been personally inspected by such attorney-at-law by any other specified attorney-at-law, at or after the time of the entry in the register of the lis pendens of the action ; and

(c) containing a statement of the name and registered address of every person, if any, found upon such inspection to be a person entitled to notice of the action.

(1) Notice of a hypothecary action shall, upon an order being made for the issue of summons on the defendants in the action, be issued to every person who is stated in the declaration filed under section 8 to be a person entitled to notice of such action, but who has not been joined as a defendant to the action.

(2) Where notice is not issued under subsection (1) to any person entitled to such notice, any party to the action may thereafter, but before the sale of the mortgaged land in execution of a hypothecary decree, apply to the court for the issue of notice of the action to such person, (whether or not his name was mentioned in the declaration filed under section 8), and notice shall be issued accordingly.

(1) Notice of a hypothecary action may be issued to a person entitled to notice of such action in the manner provided in paragraph (a) hereunder or in the manner provided in paragraph (b) hereunder, at the option of the plaintiff :-

(2) The notice referred to in sub-paragraphs (i) and (ii) of paragraph (a) of subsection (1) shall be in Sinhala and Tamil and shall be accompanied by a translation thereof in English as the court may direct.

(1) Where the plantiff in a hypothecary action joins as a defendant any person entitled to notice of the action, the provisions of section 10 shall apply in relation to the service on such person of the summons in the action in like manner as they apply in relation to the issue of notice of the action.

(2) Where any person entitled to notice of a hypothecary action is added as a party to the action, the provisions of section 10 shall apply in relation to the service on such person of any notice, process, order, decree or other document or written communication, in like manner as they apply in relation to the issue of notice of the action.

(a) such person shall be entitled at his option to be added as a party to the action upon application made to the court in that behalf within one month of the date of the posting of the notice to him under section 10 (1) (a) or of the publication of a copy thereof under that section, whichever is the later, or where the notice is served in like manner as a summons, within one month of the date of such service ;

(b) such person may, in the discretion of the court upon such terms as the court thinks just, be added as a party to the action upon application made after the expiry of the period of one month referred to in paragraph (a) but before the sale of the land under the hypothecary decree :

Provided, however, that every finding, order, decree or thing done in the action prior to the date of the application under paragraph (b) shall, unless the court in its discretion otherwise orders, bind the person so added in like manner as though he had previously been a party to the action.

(a) no finding, order, decree or proceeding previously made or taken in the action shall bind him except in so far as he may consent to be bound thereby;

(b) such person shall be entitled to raise any question or issue which he could have raised if he had originally been a party to the action, and any other party may raise any question or issue arising in consequence;

(c) a fresh trial shall be had on every issue previously raised in the action, unless such person consents to be bound by the previous finding thereon;

(d) upon the trial of any issue whether previously raised or not, no part of the evidence previously taken shall be evidence upon that issue, except in so far as all the parties to the action agree to be bound by such evidence ;

(e) if a decree had been entered in the action prior to the addition of such person as a party thereto, the court shall, if such person so requires, make order suspending the operation of such decree, and shall, after the trial of all the issues as herein before provided, confirm the judgment previously given and the decree entered thereon or annul such judgment and decree and give a new judgment and enter a new decree, as the circumstances of the case may require.

(1) A party omitted from a hypothecary action may at his option intervene in the action after the sale of the mortgaged land in execution of a hypothecary decree, but before the distribution of the proceeds of the sale, for the purpose of raising an issue as to the sum due under the mortgage in suit in the hypothecary action, and the court shall, if it finds after inquiry and hearing such evidence as may be adduced upon such issue, that the sum actually due is less than the sum stated in the decree to be due under the mortgage, amend the decree in so far as it relates to the sum found to be due under the mortgage.

(2) The raising of any issue or the amendment of any decree under subsection (1) shall not in any way affect the validity of the sale in execution of the hypothecary decree.

(3) A party omitted from a hypothecary action who intervenes in that action under subsection (1) shall, whether or not he makes a claim under section 57 to participate in the balance proceeds of sale of the mortgaged land, be bound by the sale in that action and by the decree (whether or not it is amended under that subsection) in like manner as though he had been a party to the action.

(4) Where a party omitted from a hypothecary action makes a claim under section 57 to participate in the balance of the proceeds of sale of the mortgaged land, then, notwithstanding that he may not have intervened in the action under subsection (1) of this section, he shall be bound by the decree and sale in the action in like manner as though he had been a party thereto.

(1) Where a party omitted from a hypothecary action is not a person who is by subsection (3) or subsection (4) of section 18 declared to be bound by the decree and sale in that action, and a conveyance of the mortgaged land has been executed in favour of the person who had purchased that land at the sale (hereinafter referred to as ” the prior sale “) in execution of the hypothecary decree in that action –

(2) In this section and in sections 20 to 23, ” purchaser at the prior sale ” includes any person deriving title under or from the person who purchased the land at the prior sale.

(3) The court may, if it thinks fit so to do having regard to the circumstances of any case, permit the party omitted to institute an action under subsection (1), notwithstanding that a conveyance of the mortgaged land may not have been executed in favour of the purchaser of the land.

(1) Where the court, in any action instituted under section 19, finds that any moneys are due from the mortgagor to the party omitted by virtue of the instrument under which he claims, the court shall enter a decree ordering that the land sold at the prior sale shall be resold, unless the purchaser at the prior sale pays to the party omitted, before a date specified in the decree, the moneys so found to be due to the party omitted from the mortgagor.

(2) Upon the resale of the mortgaged land under the decree entered under subsection (1), the proceeds of resale shall be distributed as follows :-

(3) Where any moneys are paid to the party omitted by the purchaser at the prior sale in compliance with the decree under subsection (1) or any moneys are paid to the party omitted under paragraph (ii) of subsection (2), the following provisions shall apply:-

(4) Any order made under subsection (3) may be enforced in the same manner as an order or decree for the payment of money in an ordinary action.

(1) Where the court is satisfied that the instrument, under which the party omitted from the hypothecary action claims an interest in the land, transferred to him the title of the mortgagor to the land, but that such title was subject to the mortgage in suit in the prior hypothecary action, the court shall enter decree declaring the party omitted to be entitled to the land subject to the right of the purchaser at the prior sale to a hypothecary charge to the extent of the amount at which he purchased the land at the prior sale or of the total amount of the moneys paid off out of such purchase money to every mortgagee under a mortgage which had priority over the interest of the party omitted, whichever amount is less, and ordering that in default of the payment of such amount to the purchaser by the party omitted the land shall be sold against the party omitted for the recovery of such amount:

Provided, however, that where the court has under section 20 determined the amount of the moneys due under any such mortgage, and the amount so determined is less than the sum actually paid off thereon out of the proceeds of the prior sale, the amount so determined shall be taken, for the purposes of the preceding provisions of this subsection, to be the moneys due under that mortgage.

(2) In any case to which subsection (1) of this section applies the court shall, if satisfied that any moneys were paid to the mortgagor out of the proceeds of the prior sale, make order directing the mortgagor to pay to the purchaser at the prior sale an amount equal to the moneys so paid to the mortgagor out of those proceeds, and such order may be enforced in the same manner as an order or decree for the payment of money in an ordinary action.

(1) In any case where, by reason that the amount of the moneys determined by the court under section 20 to be due on any mortgage is less than the amount of the moneys actually paid off on that mortgage out of the proceeds of the prior sale, there has been an over-payment to the mortgagee under that mortgage (hereinafter referred to in this section as ” the prior mortgagee), the following provisions shall apply:-

(2) Any order made under subsection (1) may be enforced in the same manner as an order or decree for the payment of money in an ordinary action.

(a) The puisne mortgagee, and every person who being entitled to notice of the action upon the puisne mortgage is by virtue of any of the preceding provisions of this Part bound by the decree and sale in that action, shall not be entitled to notice of any hypothecary action instituted subsequent to the date of such conveyance on any prior mortgage of that land, but shall be bound by the decree and sale in the latter action ;

(b) The purchaser under the puisne mortgage shall, if the mortgaged land is subsequently sold in execution of the decree in any hypothecary action upon a prior mortgage, be entitled upon making a claim in that behalf under section 57, to the entirety of the balance of the proceeds of the sale of the land remaining after satisfaction of the moneys found to be due in that action to the prior mortgagee and of the claim, if any, of any other person preferred by virtue of any other instrument having priority to the puisne mortgage ;

(c) If the purchaser under the puisne mortgage is a person entitled to notice of a subsequent hypothecary action upon a prior mortgage of the land but is a party omitted from the latter action, and if an action is instituted under section 19, then, for the purposes of the application of the provisions of subsection (1) of section 22, no mortgage shall be deemed to have priority over the interest of such party omitted unless it had priority over the puisne mortgage in suit in the action in which the land was sold to such purchaser ;

(d) If the conveyance to the purchaser under the puisne mortgage was executed after the date of the registration of the lis pendens of a hypothecary action upon a prior mortgage of the land, and if the puisne mortgagee under the mortgage in suit in the action in which such purchaser purchased the mortgaged land is a party omitted from the subsequent hypothecary action, then such purchaser, unless he is added as a party to the latter action under section 16 or makes a claim under section 57 in the latter action, shall be deemed to be a party omitted from the latter action and the provisions of paragraph (c) of this section shall be applicable ;

(e) Except in the cases referred to in paragraphs (c) and (d) if this section, the purchaser under the puisne mortgage shall, whether or not he is a party to any hypothecary action upon any prior mortgage of the mortgaged land, be bound by the decree and sale in the latter action.

(1) Where any mortgagor dies before the institution of a hypothecary action in respect of the mortgaged land, or any mortgagor or any person who is or becomes a party to a hypothecary action dies after the institution of the action, and grant of probate of the will or issue of letters of administration to the estate of the deceased has not been made, the court in which the action is to be or has been instituted may in its discretion, after the service of notice on such persons, if any, and after such inquiry as the court may consider necessary, make order appointing a person to represent the estate of the deceased for the purpose of the hypothecary action, and such person may be made or added as a party to the action :

Provided, however, that such order may be made only if –

(2) In making any appointment under subsection (1) the court shall appoint as representative a person who after summary inquiry appears to the court to be the person to whom probate of the will or letters of administration to the estate of the deceased would ordinarily be issued :

Provided, however, that in the event of a dispute between persons claiming to be entitled to be so appointed, the court shall make such an appointment (whether of one of those persons or of any other person) as would in the opinion of the court be in the interests of the estate of the deceased.

(1) The duly appointed executor of the will or the administrator of the estate of a deceased person, or the duly appointed assignee of the estate of an insolvent, or the duly appointed curator or manager of the estate of a minor or person of unsound mind, may, whether or not such deceased person, insolvent, minor or person of unsound mind has himself registered his address under section 6, register an address under that section on behalf of such estate.

(2) Where the registration of the address of the executor or administrator or of the assignee, curator or manager, as the case may be, is not effected as pro vided in subsection (1), any other person interested may register an address under section 6 on behalf of the estate of the deceased person or of the insolvent, minor or person of unsound mind. The address so registered shall be cancelled forthwith upon the registration of an address under subsection (1) on behalf of such estate.

(3) Where notice of a hypothecary action is issued under section 9 and in manner provided by section 10-

(4) In any case referred to in paragraph (b) of subsection (3), any person to whom notice of the hypothecary action is issued or any other person may, within one month of the date of the posting of the notice or of the publication thereof, whichever is the later, or where the notice is served in like manner as a summons, within one month of the date of such service, make application to the court for the appointment of some person to represent the estate of the deceased or of the insolvent, minor or person of unsound mind as the case may be, and the court shall appoint a person accordingly.

In making such appointment the court shall appoint as representative a person who after summary inquiry appears to court to be the person to whom probate of the will or letters of administration to the estate of the deceased would ordinarily be issued, or who would ordinarily be appointed to be the curator, assignee or manager of the estate, as the case may be :

Provided, however, that in the event of a dispute between persons claiming to be entitled to be so appointed, the court shall appoint as representative such of those persons or such other person, whose appointment in the opinion of the court will be in the interests of the estate.

Where the court is satisfied that proceedings are pending for the appointment of an executor, administrator, assignee, curator or manager, the court may on that ground postpone the appointment of a representative for any period not exceeding three months.

(1) Where notice of a hypothecary action is issued under section 9 and in manner provided by section 10 to the registered address of a person entitled to notice of the action, then, notwithstanding that such person may be or may have been dead or an insolvent or a minor or person of unsound mind at the time of the issue of the notice, the estate of such person shall be bound by every order, decree or sale or thing done in the hypothecary action whether or not application is made under subsection (4) of section 28 for the appointment of a representative, unless the executor or administrator or assignee, curator or manager or any other person had registered an address on behalf of the estate under subsection (1) or subsection (2) of that section.

(2) In any case where notice of a hypothecary action is in manner provided in section 10 issued to an executor, administrator, curator, assignee or manager who has registered his address as provided in subsection (1) of section 28, then, notwithstanding such death, insolvency, minority or unsoundness of mind, the estate shall be bound by every order, decree or sale or thing done in the hypothecary action, whether or not such executor, administrator, assignee, curator or manager becomes a party to the action.

(3) Where-

(1) The provisions of sections 28 to 30 shall not apply in the case of any action instituted for the enforcement of a mortgage created before the appointed date.

(2) Where a hypothecary action is instituted for the enforcement of a mortgage created before the appointed date, and the court is satisfied that any person entitled to notice of the action is or was dead or an insolvent, minor or person of unsound mind before or at the time of the issue to him of notice of the action, the person to whom probate of the will or letters of administration to the estate of the deceased is granted, or, as the case may be, the duly appointed assignee or curator or manager shall be added as a party to the action upon application made to the court in that behalf whether by such person or by any party to the action :

Provided, however, that it shall be lawful for the court in the circumstances and subject to the conditions set out in section 26 to appoint a representative of the deceased for the purpose of the hypothecary action, and in any such case the representative so appointed may be added as a party to the action in lieu of the executor or administrator.

(3) Where the executor or administrator or the duly appointed representative of a deceased person, or, as the case may be, the assignee, curator, or manager of the estate of the insolvent, minor, or person of unsound mind is not added as a party under subsection (2), the executor or administrator or, as the case may be, the assignee, curator or manager shall –

(1) The plaintiff in a hypothecary action may at his option join as a party to the action any person alleged by the plaintiff to claim any right to ownership or possession of the mortgaged land by title adverse to that of the mortgagor.

(2) Where any person is so joined as a party to the action, such person or any other party may raise any issue upon any question relating to the right of owner ship or possession of the land ; and in any such case the court shall, after hearing such evidence as may be adduced by any party to the action, make an adjudication upon the issue so raised.

(3) Where the adjudication of the court upon any issue raised as herein before provided is to the effect that the mortgagor is not entitled to the land or any part or share thereof, no decree shall be entered in the action for the sale of the land or such part or share thereof, as the case may be.

(4) Where any person is joined as a party to the action under subsection (1), every adjudication by the court on any question relating to the title of the land or to the right of possession thereof shall be res adjudicata as between all parties to the action including the party so added.

(1) Upon the institution of a hypothecary action in respect of any land, the plaintiff may at his option, at any time after the registration of the lis pendens of the action and before the issue of a precept or order for the service of summons, make application to the court for a declaration that, in the event of decree being entered for the sale of the land the court will order the removal from the land of all persons whomsoever who may resist the delivery of possession to the purchaser at the sale.

No such application shall be entertained by the court unless it is accompanied by a plan of the land.

(2) Upon such application being made, the court shall direct –

(3) Every notice under subsection (2) shall contain a statement to the effect that a plan of the land has been filed in the court and will be available for inspection by any person interested.

(4) For the purposes of paragraph (a) of subsection (2), the court shall direct publication in two newspapers which appear to the court to be the most appropriate for the purpose of conveying information of the action to the residents of the area in which the land is situated.

(5) The notices required to be posted by paragraphs (b) and (c) of subsection (2) shall be posted either before the date of the last publication of the notice under paragraph (a) of subsection (2) or not later than two weeks after that date.

(1) Where notices have been published and posted as provided in section 34, any person claiming to be entitled to possession of the land or of any part or share thereof under any right or title adverse to that of the mortgagor shall be entitled, on application made to the court in that behalf at any time within two months of the date of the last publication of the notice under paragraph (a) of section 34 (2), to be added as a party to the action for the purpose of securing an adjudication by the court upon his claim.

(2) Where any person is added as a party under subsection (1), such person or any other party may raise any issue (including an issue on a question of title) relevant to the claim to possession of the land and in any such case the court shall, after hearing such evidence as may be adduced by any party to the action, make an adjudication upon the issue so raised.

(1) Where no person makes application to be added as a party under section 35, or where the court is satisfied that none of the persons so added is entitled to possession of the land, the court shall make the declaration for which application was made by the plaintiff under subsection (1) of section 35 :

Provided, however, that where any person appears before the court at any time within the period of two months specified in subsection (1) of section 35, and satisfies the court –

(2) Where the adjudication of the court upon any issue raised as herein before provided is to the effect that the mortgagor is not entitled to the land or to any part or share thereof, the court shall make order dismissing the hypothecary action in so far as it relates to the land or such part or share.

(3) Where the adjudication of the court upon any such issue is that any party added under section 35 is entitled to possession of the land or any part there of and that the mortgage in suit in the action is subject to the rights of such person, no declaration shall be made under subsection (1) of this section in respect of the land or that part thereof, as the case may be.

(4) Where any person is added as a party to the action under section 35, every adjudication by the court upon any question relating to the title to the land or to the right to possession thereof shall be res adjudicata as between all the parties to the action including the parties so added.

(5) The making of a declaration under this section, or the removal from the land of any person in pursuance of the order made under section 55 in terms of such declaration –

(1) The plaintiff in a hypothecary action may, at any time after the registration of the lis pendens of the action, make application to the court by petition for the appointment of a receiver of the land which is the subject of the action.

Such application shall be supported by affidavit of the plaintiff stating the sum lent to the mortgagor, the sum, if any, repaid out of the loan, the sums due to the mortgagee by way of principal and interest, and the current market value of the mortgaged land.

(2) Subject as hereinafter provided, the application for the appointment of a receiver shall, unless the plain tiff otherwise desires, be dealt with ex parte by the court:

Provided, however, that where the application is made at any time after the filing of an answer by the mortgagor, the application shall be dealt with after notice to the mortgagor.

(3) This section and sections 38 to 45 shall not apply to any action upon a mortgage created before the appointed date.

(1) The court may refuse to make an order for the appointment of a receiver –

(2) Save as provided in subsection (1), the court shall not refuse to make an order for the appointment of a receiver upon application duly made in that behalf.

Notwithstanding anything in subsection (1), the court shall not refuse to make an order for the appointment of a receiver in any case where the court is satisfied that the mortgagor or other person in possession of the mortgaged land has committed any act of waste in respect of the land and that the appointment of a receiver is necessary for the purpose of the prevention of such acts.

(1) The court may cancel the appointment of a receiver –

(2) Where the appointment of a receiver is cancelled under paragraph (c) or paragraph (d) of subsection (1), the court may, if the plaintiff so desires, make a new appointment of a receiver.

(1) Every order for the appointment of a receiver shall –

(2) The court may, if it considers it necessary so to do, require the receiver to give such security as the court may consider adequate.

(3) Where the receiver is obstructed by any person in taking custody of the land, the court may, after considering such representations as may be made by such person, by order direct the removal of such person from the land.

(1) The person appointed under this Part to be the receiver of any land shall have and may exercise all the rights and powers of the owner of the land for the management, protection, and preservation of the land and the collection of the rents and profits thereof.

(2) The court may on application made by the receiver or any party to the action –

(a) render accounts to the court in such form and at such times as the court may direct in that behalf;

(b) make payment into court to the credit of the action, from time to time as the court may direct, of the nett rents and profits of the land ;

(c) be responsible for any damage to the land, or for any loss of income, incurred by his gross negligence or by any intentional act of omission on his part.

(1) Where it is shown to the satisfaction of the court –

(2) Any directions given under subsection (1) may be varied or revoked by the court on application made by the plaintiff or the mortgagor.

(1) All moneys paid into court by the receiver shall, unless the court otherwise directs, be kept in court to the credit of the action until the final disposal thereof:

Provided that payment may from time to time be made, out of such moneys, of the remuneration due to the receiver, or of such amounts as may be directed under section 43 to be paid to the mortgagor, or of such amounts as may from time to time be ordered by the court to be paid to the receiver for the purposes of the management of the land.

(2) The amount of the moneys in court shall be applied in satisfaction of the sums if any for which decree is entered in the action.

(3) No seizure of such moneys in execution of any order or decree in any other action shall affect the operation of subsection (2) of this section.

(1) Where in a hypothecary action the court finds that the mortgage ought to be enforced, the decree shall, in relation to the mortgaged land, order that the land shall be sold in default of payment, within a period of two months from the date of the decree, of the moneys due under the mortgage:

Provided, however, that the court may, in its discretion and subject to such conditions including the making of specified payments on specified dates as it thinks fit, on application made in that behalf before the entry of the decree and after consideration of the circumstances of both the mortgagor and mortgagee, fix, in lieu of the aforesaid period of two months, such longer period as the court may consider reasonable.

(2) In issuing the commission for the sale of the mortgaged land the court shall specify the amount due under the decree at the time of the issue of the commission and the amount so specified shall be mentioned in the advertisement of the sale.

Where the sale is stayed or adjourned and a subsequent advertisement is necessary, the court shall on application made by the plaintiff and upon his certifying that any part payment has been made of the amount due under the decree, give notice to the Fiscal or auctioneer of the amount due under the decree at the time of such application, and in such event the amount so notified shall be mentioned in the subsequent advertisement.

(1) Where no order is made under section 49 for the seizure of the land, the court may in the decree or subsequently give directions –

(2) Where the plaintiff so desires the court may direct the land to be sold by the Fiscal, and in any such case the sale may be conducted on behalf of the Fiscal by the Deputy Fiscal or by any other person authorized in writing by the Fiscal.

(3) Any directions given under the preceding pro visions of this section may be altered by subsequent directions of the court.

(4) Where no order is made under section 49 for the seizure of the land, the following provisions shall apply in relation to the sale :-

(1) The plaintiff in a hypothecary action shall not be entitled to bid for or purchase any mortgaged land sold in execution of the decree unless leave to bid and purchase is granted to him by the court.

(2) Every application by the plaintiff for leave to bid for and purchase any mortgaged land shall be accompanied by an appraisement from the person directed to conduct the sale setting out the current market value of the land.

A copy of such appraisement shall be sent by the Registrar, by registered post to the registered attorney for the mortgagor or where no proxy has been filed shall be served on the mortgagor in like manner as a summons and copies shall be sent by registered post to every other party to the action who has registered an address under section 6 ; the mortgagor or any such party may within a period of fourteen days from the date of the service or posting of the copy make objection to the valuation set out therein.

(3) The court shall, after consideration of such objections, if any, as may be made under subsection (2), by order fix the amount which shall be taken, for the purposes of the succeeding provisions of this section, to be the appraised value of the land.

(4) Leave to the plaintiff to bid for and purchase any mortgaged land shall in every case be subject to the condition that the plaintiff shall not bid for or purchase the land except at or above the amount of the appraised value of the land as fixed under subsection (3) or the amount required by section 48 to be mentioned in the advertisement as the amount due under the decree, whichever such amount is the less.

(5) Where two or more lands are subject to the mortgage and one advertisement only is published in respect of the sale of such lands, it shall be the duty of the Fiscal or auctioneer to specify in the advertisement the order in which such lands will be sold, whether or not directions prescribing the order of sale are given under section 52.

(6) Where application is made under subsection (2) after the publication of the advertisement of the sale, and it is necessary in consequence of such application to alter the date of the sale and publish a fresh advertisement of the sale, the court may order that the costs of the postponement and of the fresh advertisement shall be borne by the plaintiff.

(7) No appeal shall lie against any order made under this section.

(1) The court may in any hypothecary action on application made by the mortgagor and upon such terms as the court may think fit, direct that if the highest bid at the sale of any mortgaged land is less than the amount of the appraised value of the land as fixed under section 51 (3), the land shall not be sold at that sale, and that a second sale of the land shall be held.

(2) Where more than one land is subject to the mortgage in suit in the action, the court may upon application made by the mortgagor in that behalf, prescribe the order in which the lands shall be sold and may fix different dates for the sales of different lands.

(1) In any case where a declaration has been made under section 36, the court shall on application made by the purchaser order delivery to be made by putting the purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the land, and if need be, by removing therefrom all persons whomsoever who may refuse to vacate the same.

(2) Where an order is made under subsection (1), and the Fiscal reports to the court that he was unable to put the purchaser or any other person on his behalf in possession of the land, the court shall direct the Fiscal to post in conspicuous places on the land a notice in the form set out in the First Schedule to this Act and to report to the court within seven days of the posting of such notice –

(3) Where the court is satisfied upon the report of the Fiscal that any person whosoever refused to yield up possession at any time after the date of the posting of the notice referred to in subsection (2) or obstructed or resisted the Fiscal at any time after that date, the court may commit the person so refusing to yield up possession or causing such obstruction or resistance to jail for a term which may extend to thirty days, and direct the purchaser to be put into possession of the land.

(4) Where possession of the land is delivered to the purchaser and he is at any time within two months thereafter hindered or obstructed by any person in maintaining effective possession of the land, the court may commit the person causing such hindrance or obstruction to jail for a term which may extend to thirty days :

Provided, however, that nothing in the preceding provisions of this subsection shall affect or prejudice the right of the purchaser upon any such hindrance or obstruction being caused (whether within or after the period of two months aforesaid) to any remedy which may be claimed in that behalf under any written or other law.

(5) Nothing in sections 323 to 330 of the Civil Procedure Code shall apply in any case where an order for the delivery of possession to the purchaser or any other person on his behalf is made under this section.

(1) Where any land is sold in execution of a hypothecary decree in respect thereof –

(2) The rights of any person claiming under a notice of seizure to participate in the balance proceeds as provided in paragraph (a) of subsection (1), shall, as between himself and any other person claiming whether under a notice of seizure or any other instrument, have priority according to the time of registration:

Provided, however, that where two or more notices of seizure of any land are registered by different persons and no other person has any interest in the land by virtue of any other instrument registered between the dates of the registration of such notices of seizure, such different persons shall be entitled to claim a rateable distribution of the balance proceeds of sale remaining available for distribution.

(1) A mortgagee’s costs recoverable in a hypothecary action include all costs, charges and expenses properly incurred by him in relation to the action whether before or after the institution of the hypothecary action notwithstanding that they may have been incurred after the entry of decree in the action.

(2)In any case where notice of a hypothecary action is not issued under subsection (1) of section 9 to a person entitled to such notice and such person is thereafter added as a party whether in pursuance of a notice under subsection (2) of that section or under section 13 or such person intervenes in the action under section 18, the court shall have the power to make such orders as to costs, whether as against the plaintiff or otherwise, and to revise any orders previously made in the proceedings, as the court may think fit in the circumstances of the case.

(1) Where the mortgaged land is directed to be sold by any person other than the Fiscal, or where the mortgaged land is directed to be sold by the Fiscal without being previously seized as provided in section 49-

(2) For the purpose of the application of the provisions of the Civil Procedure Code where the land is sold by a person other than the Fiscal, any reference in those provisions to the Fiscal shall be deemed to be a reference to the person conducting the sale.

(3) Nothing in sections 298 to 319 of the Civil Procedure Code shall apply in any hypothecary action or any action to enforce payment of the moneys due upon a mortgage of land.

(4) Where the mortgaged land is sold by the Fiscal after being seized as provided in section 49, and an order for the delivery of possession is made under section 287 of the Civil Procedure Code, the provisions of sections 323 to 330 of that Code shall be applicable.

(1) In any of the following cases, that is to say: –

(2) Where any property which is subject to a mortgage given for any purposes mentioned in para graph (a) or paragraph (b) or paragraph (c) of sub section (1) is seized in execution of a decree in favour of any person other than the mortgagee, the seizing creditor may make application to the court by which the decree was entered for the issue of a notice of such seizure on the mortgagee ; and where such notice is issued, then, notwithstanding anything in subsection (1), the mortgage shall as against a person purchasing such property at a sale under the seizure or any other person claiming under him, be effective only to the extent of the moneys actually due under the mortgage at the date of the receipt by the mortgagee of the notice issued by the court under the preceding provisions of this subsection.

(3) The preceding provisions of this section shall apply to the mortgage of any property movable or immovable:

Provided, however, that where a mortgage of movable property is given for any purpose referred to in paragraph (a) or paragraph (b) or paragraph (c) of subsection (1), the preceding provisions of this section shall affect only the extent to which the property is subject to the mortgage, and the movable property shall not, by reason of the operation of those provisions, be deemed or construed to continue to be subject to the mortgage to any extent whatsoever as against any person claiming under a subsequent mortgage or transfer, unless –

(4) Nothing in subsection (2) shall apply in the case of any mortgage given for the purpose of guaranteeing the fidelity of a person employed as the servant or agent of another person or of securing the due custody and payment of moneys which may come into the hands of any person in his capacity as such servant or agent.

(5) In this section ” transfer ” includes any instrument creating any interest in the mortgaged property.

(1) Where a mortgage bond is executed in favour of two or more persons (each of whom is hereinafter referred to as a ” mortgagee “) in consideration of sums due or to be due to each of such persons by the mortgagor,

(2) In any action upon any mortgage bond referred to in subsection (1) no leave to bid for and purchase any mortgaged land shall be granted to any mortgagee under section 51 except, upon the condition that he shall not bid for or purchase the land except at or above the total amount due under the decree to all the mortgagees to whom payment is ordered to be made thereby, or the appraised value of the land as fixed under subsection (3) of that section, whichever is less.

(3) Where in any action upon any mortgage bond referred to in subsection (1), the court has made an adjudication as to the amount due under the mortgage to every mortgagee, then any such mortgagee shall, at the sale of the mortgaged land –

(4) Where in any action upon a mortgage bond referred to in subsection (1) the court has made an adjudication as to the amount due under the mortgage to one or some only, but not all, of the mortgagees, no mortgagee shall at the sale of the mortgaged land be given any credit notwithstanding that any amount may be ordered in the decree to be paid to him.

(5) The preceding provisions of this section shall apply in the case of every bond referred to in subsection (1) notwithstanding anything in the bond contained :

Provided that those provisions shall not apply where the bond contains provision expressly referring to this section and excluding its operation.

(1) In the case of any mortgage created after the appointed date, no warrant or power of attorney shall be given to any person to confess judgment in any action for the enforcement of the mortgage, and no warrant or power so given shall be of any force or effect in law :

Provided that nothing in the preceding provisions of this section shall apply in any case where a general power of attorney referred to in section 25 of the Civil Procedure Code has been granted by any mortgagor.

(2) Where a warrant or power of attorney to confess judgment in any action for the enforcement of a mortgage has, at any time before the appointed date, been given to a registered attorney, no judgment or decree in such action, whether entered before or after such date, and no sale in execution of such decree, shall be or be held to be invalid on the ground that –

(a) the execution of an instrument in the form set out in the Second Schedule to this Act ;and

(b) the deposit with such agency of the title deeds of such land.

(1) The instrument referred to in section 69 may be signed in the presence of, and the execution of such instrument may be attested by, the manager or secretary or any director or other person holding any prescribed office in the agency and at least one other witness ; and where such instrument is so signed and attested, nothing in section 2 of the Prevention of Frauds Ordinance shall apply thereto.

(2) Every instrument referred to in section 69 shall be executed in duplicate.

(3) Every approved credit agency –

(4) An instrument referred to in section 69 may be registered under the Registration of Documents Ordinance as an instrument affecting land.

(5) The provisions of subsection (2) * [Repealed by section 7 of Ordinance No. 13 of 1947.] of section 24 of the Registration of Documents Ordinance shall apply in relation to any instrument referred to in section 69 in any case where movable property is also affected thereby.

(1) In the case of an instrument referred to in section 69, an amount equal to one-fifth of the duty chargeable under Schedule A to the Stamp Ordinance or the Stamp Duty Act, No. 43 of 1982, in the case of a bond or mortgage of a like nature (which duty so chargeable is hereinafter referred to as the “statutory stamp duty”) may be paid at the time of execution, and where such amount is paid, the instrument shall be deemed to be duly stamped for the purposes of that Ordinance or that Act if proceedings for the recovery of the moneys secured by the instrument are instituted, or the instrument is discharged, during the period of six months commencing on the date of the execution thereof.

(2) In any case where one-fifth of the statutory stamp duty is paid at the time of the execution of any instrument referred to in section 69. the following provisions shall have effect :-

(3) Where the Commissioner-General of Inland Revenue or any other officer of his department duly authorized by him in that behalf, is satisfied, upon presentation to him of an instrument, that a payment has been duly made in accordance with any provision of paragraphs (a) to (c) of subsection (2), the Commissioner-General or such officer shall by means of an endorsement under his hand on such instrument certify that such payment has been duly made.

No payment shall be certified by the Commissioner-General or any officer under the preceding provisions of this subsection unless the instrument is presented to him within fourteen days of the date of such payment:

Provided, however, that the Commissioner-General or such officer may in his discretion certify such payment notwithstanding any delay in the presentation of the instrument, if he is satisfied that the delay was due to inadvertence.

(4) All payments of stamp duty under subsection (2) of this section shall be made by sending to the Commissioner-General the amount of the further duty from time to time to be paid under that subsection.

(1) The payments for which provision is made by section 71 may be made by the approved credit agency without prior reference to the person executing the instrument.

(2) The amount of every payment made as provided by section 71 may be added to the amount the payment of which is secured by the instrument, and if so added, shall be recoverable accordingly.

(1) Where the holder of any shares-

(2) The right of the agency to sell any shares under subsection (1) shall include the right to purchase the shares at the current market value, or where the transfer had been executed in favour of the agency to retain the shares, credit being in either event given to the mortgagor to the extent of the current market value.

(3) The rights of the agency under the preceding provisions of this section may be exercised in respect of all the shares which are for the time being subject to the mortgage under the instrument referred to in subsection (1) (a) or separately in respect of any shares so subject.

(1) Every instrument of mortgage referred to in paragraph (a) of section 73 (1) shall contain the address to which notice of demand of payment may be sent to the mortgagor by the agency :

Provided, however, that upon any change of address the mortgagor may notify the new address to the agency and such new address, if acknowledged in writing by the agency, shall, for the purposes of section 73, be the address to which a notice of demand of payment may be sent.

(2) Every such notice of demand shall be sent by registered post in a letter to the address of the mortgagor as stated in the instrument referred to in paragraph (a) of section 73 (1) or to such new address as may for the time being have been notified and acknowledged as provided in subsection (1) of this section.

(1) Upon the exercise under section 73 of the right of sale or purchase of any shares and the completion of a transfer in blank by the insertion of the name of the purchaser as transferee of the shares, the transfer as so completed shall have the like effect as though it had been executed by the mortgagor at the time of completion.

(2) Where a transfer (other than in blank) of any shares has been executed by the mortgagor as provided in section 73 in favour of an approved credit agency or a nominee of such agency, the fact that the transfer had been executed by way of mortgage shall not affect the right of the agency or the nominee, during the pendency of the mortgage, to apply to be registered as holder of the shares and to be so registered.

(a) the moneys realized upon such sale or credited as provided in section 73 (2) shall be applied by the agency in satisfaction of the debt due and payable under the mortgage, and the mortgagor shall be entitled to receive the balance, if any, remaining after such debt is satisfied ;

(b) if the moneys realized or credited upon the sale or purchase of all the shares mortgaged by the instrument are insufficient to satisfy such debt, the deficiency may be recovered from the mortgagor in the ordinary course of law.

(a) the mortgagor shall be entitled, in the case of a transfer in blank, to receive from the agency the certificate or certificates in respect of such shares or of the shares remaining unsold, as the case may be, together with the transfer in blank in respect thereof ;

(b) the mortgagor shall be entitled in the case of a transfer otherwise than in blank, to receive from the agency or its nominee at the instance of the agency, a duly executed instrument of retransfer of the share or of the shares remaining unsold, as the case may be.

(1) Where any shares mortgaged as provided in section 73 are sold or caused to be sold, or are purchased by the agency, otherwise than in the due exercise of the right conferred in that behalf by that section, the mortgagor shall be entitled to recover from the agency the amount of any loss or damage suffered or incurred by reason of such sale or purchase :

Provided, however, that no such action for any loss or damage shall be maintainable by the mortgagor on the ground that notice of demand under section 74 was not received by him, if it is proved that such notice was sent by registered post in a letter addressed to the mortgagor at the proper address referred to in the aforesaid section 74, and that the right of sale or purchase was exercised after one month from the date of such posting.

(a) creates a mortgage of the policy in favour of an approved credit agency by means of an instrument in the form set out in the Third Schedule to this Act, and

(b) assigns the policy to the agency by way of mort – gage and deposits it with such agency,

the following provisions shall have effect, that is to say –

such agency shall be entitled to surrender the policy to the insurer and to receive payment of the surrender value of the policy or of such amount as would have been payable to the assured if the policy had been surrendered by him.

In any case to which this section applies, the payment to the agency by the insurer of the surrender value of the policy or of such other amount of which the agency is declared by this section to be entitled to receive payment shall be a discharge of the liability of the insurer upon the policy.

(1) Every instrument of mortgage referred to in paragraph (a) of section 81 shall contain the address to which notice of demand of payment may be sent to the mortgagor by the agency :

Provided, however, that upon any change of address the mortgagor may notify the new address to the agency which shall thereupon acknowledge the new address in writing ; and such new address, if so acknowledged, shall, for the purposes of section 81, be the address to which a notice of demand of payment may be sent.

(2) Every such notice of demand shall be sent by registered post in a letter to the address of the mortgagor as stated in the instrument referred to in paragraph (a) of section 81 or to such new address as may for the time being have been notified and acknowledged as provided in subsection (1) of this section.

(a) the moneys received by the agency from the insurer shall be applied in satisfaction of the debt due and payable under the mortgage ;

(b) the mortgagor shall be entitled to payment from the agency of the balance, if any, remaining after satisfaction of such debt;

(c) if the moneys so received are insufficient to satisfy such debt, the agency shall be entitled to recover the deficiency in the ordinary course of law.

(1) Where a mortgage of any corporeal movables is created in favour of an approved credit agency, it shall be lawful for the agency, subject to the provisions of subsections (2) and (3), to sell any of the movables subject to the mortgage which may for the time being be actually in the possession and custody of the agency.

(2) The power conferred on the agency by subsection (1) to sell any movables shall be exercised only if the instrument of mortgage or an agreement between the parties contains provision referring to this section and empowering the agency to exercise the power of sale conferred thereby, and if either of the following conditions is fulfilled, that is to say –

(3) Every sale in exercise of the power conferred by subsection (1) shall be by public auction, and it shall be the duty of the agency to take such steps as are necessary to ensure –

(1) The power of sale conferred by section 85 shall not be exercised unless the instrument of mort gage contains an address to which notice of demand of payment may be sent to the mortgagor by the agency ; or where there is no such instrument unless the mortgagor has in writing signed by him furnished an address as aforesaid to the mortgagee :

Provided, however, that upon any change of address, the mortgagor may notify his new address to the agency, and such new address, if acknowledged in writing by the agency, shall for the purposes of section 85 be the address to which a notice of demand of payment may be sent.

(2) Every such notice of demand of payment shall be sent by registered post in a letter to the address of the mortgagor as stated in the instrument of mortgage or the writing referred to in subsection (1), or to such new address as may, for the time being, have been notified and acknowledged as provided by that subsection.

(a) the moneys realized upon such sale shall be applied by the agency in satisfaction of the debt due and payable under the mortgage, and the mortgagor shall be entitled to receive the balance, if any, remaining after such debt is satisfied ;

(b) if the moneys realized upon the sale are insufficient to satisfy such debt, the deficiency may be recovered from the mortgagor in the ordinary course of law.

(a) is due or may become due to any person on account of any loan made in the ordinary course of any business carried on by that person as a money-lender, or on account of goods sold in the ordinary course of any business carried on by that person as a seller of such goods, or on account of work or services performed or rendered in the ordinary course of any business carried on for profit by that person, and

(b) is shown in the books kept by such person in the ordinary course of the business.

(1) An assignment of any book debt shall, if such assignment is executed in favour of an approved credit agency and is expressed to be by way of mort gage and is duly registered under the Registration of Documents Ordinance, confer on the agency, in addition to the right to enforce such mortgage by action in any competent court, the right to demand, accept and recover payment of such debt from the person owing such debt to the assignor :

Provided, however, that no right herein before conferred on the agency shall be exercisable –

(2) The provisions of subsection (1) shall apply in relation to a book debt notwithstanding –

(1) Notice of the assignment of a book debt may be given by the agency to a person owing such debt in any manner set out hereunder, that is to say –

(2) Any notice referred to in paragraph (a) or paragraph (b) of subsection (1) may be signed by the assignor at the time of the execution of the assignment or at any time thereafter, and may be sent or presented to the person owing the debt at any time while the assignment is operative.

(1) Notwithstanding the execution of any assignment referred to in section 90, but subject as hereinafter provided, the assignor shall, unless and until notice of the assignment is given to the person owing the debt, have the same right to recover such debt from such person whether by way of action or otherwise, and to appropriate to his own use any moneys so recovered, as though the assignment had not been executed :

Provided, however, that the agency shall be entitled, upon making application to any court in which an action for the enforcement of the assignment can properly be instituted, by petition supported by an affidavit declaring that moneys are due and payable to him under the mortgage, to obtain ex parte an injunction restraining the assignor from recovering any such debt, and if need be an order authorizing the Fiscal –

(2) Where an injunction has been issued under subsection (1) or any order relating to the books has been made under that subsection, the court may thereafter upon application made by the assignor and after such inquiry as it may consider necessary, make such order in relation to the injunction and to the books as the court may think fit.

(1) Where a mortgage is created in respect of the entirety of the goods which are, or may at any future time be, in any specified premises, or of the goods which constitute or may at any future time constitute the entire stock in trade in any specified premises, and an action is instituted by the mortgagee for the enforcement of the mortgage or the recovery of the moneys due thereunder, the mortgagee may, at or after the time of the institution of the action, make application to the court by petition for the appointment of a receiver of the mortgaged property.

(2) Such application shall be supported by affidavit of the mortgagee stating the sum lent to the mortgagor, the sum, if any, repaid out of the loan, and the sums due to the mortgagee by way of principal and interest.

(3) Subject as hereinafter provided, the application for the appointment of a receiver shall, unless the mortgagee otherwise desires, be dealt with ex parte by the court:

Provided, however, that where the application is made at any time after the filing of an, answer by the mortgagor, the application shall be dealt with after notice to the mortgagor.

(1) Every order for the appointment of a receiver in any case to which section 96 applies shall –

(2) The court may, by subsequent order, on application made by the receiver, the mortgagor or the mortgagee –

(3) The person appointed to be the receiver of the mortgaged property shall, for the purposes of the exercise of the rights conferred on him by any directions given under the preceding provisions of this section, have and be entitled to exercise all the rights and powers of the owner of the mortgaged property.

(4) Where the receiver is obstructed in taking possession of the mortgaged property, the court may after inquiry make such orders as may be necessary for the purpose of securing that delivery of possession is given to the receiver.

(a) render accounts to court in, such form and at such times as the court may direct in that behalf;

(b) make payment to court to the credit of the action, from time to time as the court may direct, of the nett receipts received by him in his capacity as such ;

(c) be responsible for any damage to the mortgaged property, or for the loss of any income, incurred by his gross negligence or by any intentional act on his part.

(1) All moneys paid into court by the receiver under section 99, shall, unless the court otherwise directs, be kept in court to the credit of the action until the final disposal of the action :

Provided that payment may from time to time be made out of such moneys of the remuneration due to the receiver.

(2) The amount of the moneys in court to the credit of the action at the date of the decree entered in the action shall be applied in satisfaction of the amount stated in the decree to be due upon the mortgage.

(3) No seizure of such moneys in execution of any order or decree in any other action (other than an action for the enforcement of a mortgage having priority to the mortgage in suit in the action referred to in section 96) shall affect the operation of subsection (2) of this section.

(1) Where any motor vehicle is mortgaged to any person –

(2) Application for registration under subsection (1) shall be made by the mortgagor and shall be accompanied by a fee of one rupee.

(3) The Registrar shall, on application made in that behalf by any person interested and on payment of a fee of one rupee, issue a certified copy of any entry made under subsection (1).

(4) In this section and in sections 103 and 104, ” motor vehicle ” has the same meaning as in the Motor Traffic Act.

(a) Notwithstanding anything in any other law, any sale or other disposition of the motor vehicle by or against the mortgagor shall not, so long as the mortgage continues in force, extinguish or be deemed to extinguish the mortgage of the motor vehicle, which shall remain subject to the mortgage in the hands of the transferee or other person in whose favour such disposition is effected;

(b) Upon the issue by the Registrar under the Motor Traffic Act of any new certificate of registration to any person registered as the new owner or of a duplicate certificate, the Registrar shall make an endorsement on the certificate to the effect that the motor vehicle has been mortgaged by the instrument referred to in paragraph (a) of section 102 (1).

(1) Where any movable property whatsoever which is subject to a mortgage is seized in execution of a decree in favour of any person other than the mortgagee-

(2) Notice of an order under subsection (1) (c) shall be given to the parties to the action, and the court shall after such inquiry as may be necessary appoint an auctioneer to conduct the sale and give directions as to the time and manner of such sale.

(3) Where the seizure of the movable property is released after the making of an order under subsection (1) (c) for the sale thereof, the order under that sub section shall be annulled and no further proceedings shall be taken thereon.

(4) Where the mortgagee is added under subsection (1) as a party to the action and the movable property is or has been sold, whether under the seizure or under an order made under subsection (1) (c), and it is proved to the satisfaction of the court (after trial of such relevant issues as may be framed) that the movable property was at the date of such addition subject to the mortgage and either (i) that any sum was due and payable under the mortgage at that date or on demand, or (ii) that any sum, the amount of which is ascertainable, is certain to fall due for payment under the mortgage upon the effluxion of time without the happening of any future event or the future fulfillment of any condition –

(1) Where any movable property whatsoever is subject to a mortgage, and the mortgagor is adjudicated insolvent, the mortgagee shall, upon making an application in that behalf by petition and affidavit in the proceedings upon such insolvency, be entitled to obtain in those proceedings an order directing that the property be sold by public auction by an auctioneer approved by the court in accordance with such directions as may be issued by the court in that behalf.

The court may, if it thinks fit, before approving the auctioneer or giving such directions, issue notice to the assignee of the estate of the insolvent.

(2) Where any property is sold upon application made under subsection (1), and it is proved to the satisfaction of the court, after trial of such relevant issues as may be framed, that the movable property was at the date of the application subject to the mortgage and either (i) that any sum was due and payable under the mortgage on that date or (ii) that any sum, the amount of which is ascertainable, is certain to fall due for payment under the mortgage upon the effluxion of time without the happening of any future event or the future fulfillment of any condition –

(1) A plaintiff in an action for the recovery of the rent due from a tenant in respect of any premises shall be entitled, upon satisfying the court that rent is due from the tenant and has been in arrear for one month after it has become due, to obtain from the court, ex parte, an injunction restraining the tenant from removing any goods from the premises or causing or permitting the removal therefrom of any goods, at any time while any rent remains due and unpaid, unless authority has been granted in that behalf under subsection (3).

(2) Every application for an injunction under sub section (1) shall be made in the manner provided by section 662 of the Civil Procedure Code and all the provisions of Chapter XLVIII of that Code, other than section 664, shall apply accordingly.

(3) When an injunction has been issued under sub section (1) in respect of the goods upon any premises and is for the time being in force, the court may upon application made by petition supported by affidavit, and after notice to the plaintiff and such inquiry as the court may deem necessary, by order authorize the removal of any goods from the premises if satisfied –

(4) Where an injunction has been issued under sub section (1) in respect of the goods upon any premises and is for the time being in force, any person who knowing or having reason to believe that it is unlawful for the tenant to remove or cause or permit the removal of the goods from the premises, removes or assists in the removal from the premises of any goods the removal of which is not authorized by order under subsection (3), may be punished as for a contempt of court in like manner as a tenant in case of disobedience.

(1) Subject to the proviso to section 218 of the Civil Procedure Code, all goods belonging to a tenant and all household goods belonging to any member of his family as hereinafter defined and for the time being upon any premises shall be liable to be seized in execution of a decree in an action against the tenant for rent due in respect of the premises, and where such goods are so seized and sold, the payment of the amount of the decree shall be a first charge on the proceeds of sale in preference to any other charge or interest whatsoever other than a charge in favour of Her Majesty or of any local authority.

(2) No action for damages shall lie by reason of the seizure, in execution of any decree in an action for rent due in respect of any premises, of any goods for the time being upon the premises, on the ground only that they do not belong to the tenant or to a member of his family as hereinafter defined.

(1) Every application for a declaration of any company, firm, institution or individual as an approved credit agency under paragraph (c) of section 3 shall be made to the Director of Commerce.

Every such application shall be referred to a board consisting of a chairman and two other persons nominated by the Minister.

(2) The Director shall, if the board so recommends upon any application, by Notification published in the Gazette, declare the applicant to be an approved credit agency for the purposes of this Act.

(3) The decision of the board upon any such application shall be final.

(4) Where any company, firm, institution or individual has been declared under paragraph (c) of section 3 to be an approved credit agency, the board of its own motion or on representations made by the Director of Commerce may recommend to the Director that the declaration made under that paragraph should be revoked with effect from a date specified by the board. The decision of the board in any such case shall be final, and upon such recommendation being made the Director shall by notification in the Gazette revoke the declaration with effect from the date so specified:

Provided, however, that the revocation shall not in any way affect the validity or the operation of any instrument duly executed in favour of such agency under any provision of this Act or of any other written law prior to the date on which the revocation takes effect, or affect the power of such agency to exercise after that date any right which may be exercised under any such written law by virtue of the instrument so executed before that date.

(5) The members of the board may be paid such remuneration (not exceeding one hundred and fifty rupees for each sitting) as may be fixed by the Minister, out of moneys voted for the purpose by Parliament.

(6) The members of the board shall hold office for such period as may be specified by the Minister at the time of appointment; but any such appointment may be revoked by the Minister at any time.

(7) Nothing in Part IV or Part V of this Act shall be deemed or construed to authorize any institution mentioned in paragraph (b) of section 3 to make loans upon the security of any property, if the power to make loans on such security is not conferred on such institution by the written law providing for the establishment, powers and functions of such institution.

(1) The Minister of Justice may make rules-

(2) Every rule made under subsection (1) shall be submitted to Parliament for approval. Every rule so approved shall be published in the Gazette, and shall come into force upon such publication.