Order XXXIV Rule 8 provides for a final decree restoring the mortgagor's rights upon the required payment. On default, the mortgagee may seek foreclosure or sale, depending on the type of mortgage. The right to redeem before confirmation of a court sale is subject to the additional purchaser deposit prescribed by Rule 8(2).
Meaning and scope of Order XXXIV Rule 8
Order XXXIV of the Code of Civil Procedure, 1908 governs suits concerning mortgages of immovable property. Rule 7 deals with the preliminary decree in a redemption suit, including determination of the mortgage debt and the time for payment. Rule 8 addresses the final decree or order after payment, and the consequences when the mortgagor does not pay.
The substantive right of redemption is recognised by Section 60 of the Transfer of Property Act, 1882: subject to law, a mortgagor who pays or tenders the mortgage money can require return of mortgage documents, possession where appropriate, and re-transfer or acknowledgment of discharge.
Rule 8(1): Final decree when the mortgagor pays
If the plaintiff in a redemption suit deposits the amounts required under Rule 7(1) before a final foreclosure decree or before confirmation of a sale ordered under Rule 8(3), the court, on the plaintiff's application, shall pass the appropriate final decree or order. It can direct the mortgagee to deliver the title documents, re-transfer the property at the plaintiff's cost and, where necessary, restore possession.
Rule 8(2): Additional deposit after auction
If a court-ordered sale has already taken place but has not been confirmed, the mortgagor seeking relief under Rule 8(1) must also deposit 5 percent of the purchase money paid into court by the purchaser. The purchaser is then entitled to repayment of the purchase money deposited together with the additional 5 percent. This is separate from the mortgage amount payable under the preliminary decree.
Rule 8(3): Consequences of non-payment
Foreclosure in specified mortgages
For a mortgage by conditional sale, or an anomalous mortgage of the kind described in Rule 7, the court may, on the defendant's application, finally bar the plaintiff and persons claiming under the plaintiff from redemption, and may order possession to be delivered to the defendant.
Sale in other eligible mortgages
For other mortgages, excluding usufructuary mortgages, the court may order sale of the mortgaged property or a sufficient part of it. After sale expenses, the proceeds are applied towards the amount due to the defendant, with any balance paid to the plaintiff or other entitled persons.
Related legal provisions
Order XXXIV Rule 7: preliminary decree in redemption suits, fixing the amount due and the period for payment, with provision for extension on good cause before a final decree. Order XXXIV Rules 10 and 11: subsequent costs, charges, expenses and interest where applicable. Section 58 of the Transfer of Property Act: definition of mortgage and the different mortgage types, relevant to whether foreclosure or sale is available.
For the statutory text and forms, consult the official Code of Civil Procedure, 1908 and the official Transfer of Property Act, 1882. Court-specific amendments and binding judicial decisions may also affect the procedure.
Text of Order XXXIV Rule 8 CPC
(1) Where, before a final decree debarring the plaintiff from all right to redeem the mortgaged property has been passed or before the confirmation of a sale held in pursuance of a final decree passed under sub-rule
(3) of this rule, the plaintiff makes payment into Court of all amounts due from him under sub-rule
(1) of rule 7, the Court shall, on application made by the plaintiff in this behalf, pass a final decree or, if such decree has been passed, an order-
(a) ordering the defendant to deliver up the documents referred to in the preliminary decree, and, if necessary, -
(b) ordering him to re-transfer at the cost of the plaintiff the mortgaged property as directed in the said decree, - and, also, if necessary,-
(c) ordering him to put the plaintiff in possession of the property.
(2) Where the mortgaged property or a part thereof has been sold in pursuance of a decree passed under sub-rule
(3) of this rule, the Court shall not pass an order under sub-rule
(1) of this rule, unless the plaintiff, in addition to the amount mentioned in sub-rule (1), deposits in Court for payment to the purchaser a sum equal to five per cent. of the amount of the purchase-money paid into Court by the purchaser. Where such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase-money paid into Court by him, together with a sum equal to five per cent thereof.
(3) Where payment in accordance with sub-rule
(1) has not been made, the Court shall, on application made by the defendant in this behalf,-
(a) in the case of a mortgage by conditional sale or of such an anomalous mortgage as is hereinbefore referred to in rule 7, pass a final decree declaring that the plaintiff and all persons claiming under him are debarred from all right to redeem the mortgaged property and, also, if necessary, ordering the plaintiff to put the defendant in possession of the mortgaged property; or
(b) in the case of any other mortgage, not being a usufructuary mortgage, pass final decree that the mortgaged property or a sufficient part thereof be sold, and the proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into Court and applied in payment of what is found due to the defendant, and the balance, if any, be paid to the plaintiff or other persons entitled to receive the same.
The statutory material above is retained from the original webpage and reformatted for readability. Refer to the official legislation for authoritative text and any applicable amendments.