THE TRANSFER OF PROPERTY ACT 521
Rights of the Mortgagee
- They fall into two divisions—
(1) Right to realize the mortgage money.
(2) Right to have the security maintained in tact during the continuance of the mortgage.
I. R IGHT TO REALIZE THE MORTGAGE MONEY .
- Under this fall the following rights—
(1) Right to foreclose 67.
(2) Right to sell 67/69.
(3) Right to sue for mortgage money 68.
(4) Right to claim money on sale and acquisition 73.
- A suit to obtain a decree that a mortgagor shall be absolutely debarred of his right to redeem the mortgaged property is a suit for foreclosure.
N OTE . —
Mortgage money does not mean the whole of the mortgage money. If a mortgage is payable by instalments, it is open to the mortgagee to bring a suit for foreclosure for an instalment of the principal and interest. 13 M.L.I.2.
In the absence of an express stipulation, a mortgagee is not bound to receive payment by instalments— 24 All. 461.
A suit for interest is maintainable even before the principal money became due unless there is a covenant prohibiting him from doing so.
The three rights are not available to every mortgagee.
I. T HE RIGHT TO SUE FOR MONEY .
Section 68.
This is available only where the mortgagor binds himself to repay the same.
Question. —When can it be said that a mortgagor personally binds himself to pay ?
There are two views on the matter.
(a) A personal covenant is presumed in all mortgages of whatever form. According to this view, the only difference that can arise is that the Court might in the absence of an express covenant, demand more clearly implied covenants than it might require in other case— 13 Lah. 259.