522 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES
(b) The other view is that a covenant can arise only where there is an express covenant the words are binds himself. This clause would be unnecessary if personal covenant was implied in all cases.
By definition
Section 58.
The mortgagor in a simple mortgage binds himself to repay the money.
In a mortgage by conditional sale, he says that “if he pays he will recover his property”.
In a usufructuary mortgage he does not even make this qualified covenant. It is therefore clear that a mortgagor can sue for a money decree in the case of a simple mortgage but not in the case of other kinds of mortgages unless there is an express covenant to that effect.
Exceptions.
The mortgagor can sue for a money decree from the mortgagor. But he cannot sue for a money decree from a transferee from the mortgagor or from his legal representative.—
Other cases in which he can sue for a money decree.
Generally a mortgagee can sue for a money decree when there is a personal covenant by the mortgagor to pay.
- There are cases where a mortgagee can sue although there is no personal covenant to pay—
Section 68.
(i) Where by accidental causes, not due to the act of either party such as fire, flood or vis major the property is destroyed, wholly or partly, or is rendered insufficient and the mortgagor on being given an opportunity fails to give further security.
(ii) Where the mortgagee is deprived of the whole or part of his security by the wrongful conduct of the mortgagor.
(iii) Where the mortgagee being entitled to possession, the mortgagor fails to deliver possession or fails to secure the mortgagee in his possession.
Right to sell
- This right belongs only to—
(i) Simple mortgagee.