Order XXXIV Rule 9 CPC - Decree Where Nothing Is Due or Mortgagee Has Been Overpaid
Order XXXIV Rule 9 of the Code of Civil Procedure, 1908 provides relief to a person seeking redemption when the mortgage accounts establish that no money remains payable to the mortgagee, or that the mortgagee has already received more than the amount lawfully due.
Statutory provision: Order XXXIV Rule 9
Decree where nothing is found due or where mortgagee has been overpaid. Notwithstanding anything hereinbefore contained, if it appears, upon taking the account referred to in rule 7, that nothing is due to the defendant or that he has been overpaid, the Court shall pass a decree directing the defendant, if so required, to re-transfer the property and to pay to the plaintiff the amount which may be found due to him; and the plaintiff shall, if necessary, be put in possession of the mortgaged property.
Meaning and scope of Rule 9
Rule 9 applies in a mortgage redemption suit after the court takes the mortgage account contemplated by Order XXXIV Rule 7 CPC. It addresses two outcomes: the account shows that the mortgagee is owed nothing, or the account shows that the mortgagee has been overpaid.
The provision begins with the words "Notwithstanding anything hereinbefore contained". This gives Rule 9 overriding effect over preceding provisions of Order XXXIV to the extent needed to grant the specified relief when the accounts show that the mortgagee has no outstanding entitlement or owes money back.
When can the court grant relief?
- Account-taking: The mortgage accounts must be examined under Rule 7, including relevant principal, interest, receipts and allowable charges.
- No outstanding balance or overpayment: The accounting must establish that nothing is due to the defendant, or that the defendant has received more than is due.
- Consequential directions: The court directs retransfer of the mortgaged property if required and payment of the amount found due to the plaintiff.
- Restoration of possession: Where necessary, the decree also enables the plaintiff to be put in possession of the mortgaged property.
Reliefs available under Order 34 Rule 9
1. Retransfer of the mortgaged property
If required, the mortgagee must retransfer the property. The purpose is to restore the property to the person entitled to redemption once the secured obligation has been discharged.
2. Repayment of excess money
If the mortgagee has been overpaid, the court directs payment to the plaintiff of the amount found due after the mortgage account is settled. The actual figure depends on the evidence and the court's accounting.
3. Delivery of possession
If the circumstances require it, the plaintiff is to be placed in possession of the mortgaged property. This is especially relevant where the mortgagee is in possession and has no continuing right to retain it.
Relevant legal definitions
Mortgage: Under Section 58(a) of the Transfer of Property Act, 1882, a mortgage is a transfer of an interest in specific immovable property for securing repayment of a loan, an existing or future debt, or performance of an engagement giving rise to pecuniary liability.
Mortgagor and mortgagee: Section 58(a) identifies the transferor as the mortgagor and the transferee as the mortgagee. In a typical redemption suit, the mortgagor is the plaintiff and the mortgagee is the defendant.
Right to redeem: Section 60 of the Transfer of Property Act, 1882 generally entitles the mortgagor, upon payment or tender of the mortgage money at the proper time, to require return of mortgage documents, retransfer or acknowledgement of extinguishment of the mortgagee's interest, and possession where applicable, subject to the statute.
Preliminary decree: Under Section 2(2) of the Code of Civil Procedure, 1908, a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. Rule 7 addresses the preliminary decree in a redemption suit; Rule 9 addresses the special accounting outcome of no debt or overpayment.
Illustrative example
Suppose the mortgage account, after considering lawful interest, charges and amounts already received by the mortgagee, establishes that the mortgagee received Rs. 75,000 more than was due. Under Rule 9, the court may direct repayment of the Rs. 75,000 to the plaintiff, retransfer of the property if required, and restoration of possession if necessary. This example is illustrative; actual entitlement depends on the accounts and evidence.
Related provisions and official sources
Read Order XXXIV Rule 7 (preliminary decree in redemption suit), Rule 8 (final decree in redemption suit), Rule 10 (subsequent costs) and Rule 11 (interest).
For primary legislation, consult the Government of India's India Code portal for the Code of Civil Procedure, 1908 and the Transfer of Property Act, 1882. State amendments and applicable judicial decisions should also be checked for the particular proceeding.
Frequently asked questions
Does the mortgagor have to pay again if the accounts show nothing is due?
No further mortgage amount is payable on the account as determined. Rule 9 provides for appropriate relief where the account shows nothing due to the mortgagee.
Can the mortgagee be ordered to return excess payments?
Yes. If the court finds an overpayment upon taking the Rule 7 account, Rule 9 requires a decree directing payment of the amount found due to the plaintiff.
Can the court order delivery of possession?
Yes. Rule 9 expressly provides that the plaintiff shall, if necessary, be put in possession of the mortgaged property.
This article explains the general statutory position. The exact relief depends on the mortgage deed, pleadings, accounting evidence and applicable law.