Section 66 in The Transfer of Property Act, 1882
Title: Waste by mortgagor in possession.
A mortgagor in possession of the mortgaged property is not liable to the mortgagee for allowing the property to deteriorate; but he must not commit any act which is destructive or permanently injurious thereto, if the security is insufficient or will be rendered insufficient by such act.
Explanation.-- A security is insufficient within the meaning of this section unless the value of the mortgaged property exceeds by one-third, or, if consisting of buildings, exceeds by one-half, the amount for the time being due on the mortgage.
Title: Right to foreclosure or sale.
In the absence of a contract to the contrary, the mortgagee has, at any time after the mortgage-money has become 1[due] to him, and before a decree has been made for the redemption of the mortgaged property, or the mortgage-money has been paid or deposited as hereinafter provided, a right to obtain from the Court 2[a decree] that the mortgagor shall be absolutely debarred of his right to redeem the property, or 2[a decree] that the property be sold.
A suit to obtain 2[a decree] that a mortgagor shall be absolutely debarred of his right to redeem the mortgaged property is called a suit for foreclosure.
Nothing in this section shall be deemed—
3[(a) to authorise any mortgagee, other than a mortgagee by conditional sale or a mortgagee under an anomalous mortgage by the terms of which he is entitled to foreclose, to institute a suit for foreclosure, or an usufructuary mortgagee as such or a mortgagee by conditional sale as such to institute a suit for sale; or]
(b) to authorise a mortgagor who holds the mortgagee's rights as his trustee or legal representative, and who may sue for a sale of the property, to institute a suit for foreclosure; or
(c) to authorise the mortgagee of a railway, canal or other work in the maintenance of which the public are interested, to institute a suit for foreclosure or sale; or
(d) to authorise a person interested in part only of the mortgage-money to-institute a suit relating only to a corresponding part of the mortgaged property, unless the mortgagees have, with the consent of the mortgagor, severed their interests under the mortgage.
1. Subs. by s. 31, ibid., for "payable".
2. Subs. by s. 31, ibid., for "an order".
3. Subs. by Act 20 of 1929, s. 31, for clause (a).
Title: Mortgagee when bound to bring one suit on several mortgages.
1[67A. Mortgagee when bound to bring one suit on several inortgages.-- A mortgagee who holds two or more mortgages executed by the same mortgagor in respect of each of which he has a right to obtain the same kind of decree under section 67, and who sues to obtain such decree on any one of the mortgages, shall, in the absence of a contract to the contrary, be bound to sue on all the mortgages in respect of which the mortgage-money has become due.]
1. Ins. by s. 32, ibid.
Title: Right to sue for mortgage-money.
1[68. Right to sue for mortgage-money.-- (1) The mortgagee has a right to sue for the mortgagemoney in the following cases and no others, namely:--
(a) where the mortgagor binds himself to repay the same;
(b) where, by any cause other than the wrongful act or default of the mortgagor or mortgagee, the mortgaged property is wholly or partially destroyed or the security is rendered insufficient within the meaning of section 66, and the mortgagee has given the mortgagor a reasonable opportunity of providing further security enough to render the whole security sufficient, and the mortgagor has failed to do so;
(c) where the mortgagee is deprived of the whole or part of his security by or in consequence of the wrongful act or default of the mortgagor;
(d) where, the mortgagee being entitled to possession of the mortgaged property, the mortgagor fails to deliver the same to him, or to secure the possession thereof to him without disturbance by the mortgagor or any person claiming under a title superior to that of the mortgagor:
Provided that, in the case referred to in clause (a), a transferee from the mortgagor or from his legal representative shall not be liable to be sued for, the mortgage-money.
(2) Where a suit is brought under clause (a) or clause (b) of sub-section (1), the Court may, at its discretion, stay the suit and all proceedings therein, notwithstanding any contract to the contrary, until the mortgagee has exhausted all his available remedies against the mortgaged property or what remains of it, unless the mortgagee abandons his security and, if necessary, re-transfers the mortgaged property.]
1. Subs. by s. 33, ibid., for section 68.
Title: Power of sale when valid.
1[(1)] 2[3*** a mortgatee, or any person acting on his behalf, shall, subject to the provisions of this section, have power to sell or ,concur in selling the mortgaged property, or any part thereof, in default of payment of the mortgage -money, without the intervention of the Court, in the following cases and in no others, namely:--]
(a) where the mortgage is an English mortgage, and neither the mortgagor nor the mortgagee is a Hindu, Muhammadan or Buddhist 4[or a member of any other race, sect, tribe or class from time to time specified in this behalf by 5[the State Government], in the Official Gazette;
(b) where 6[a power of sale without the intervention of the Court is expressly conferred on the mortgagee by the mortgage-deed, and] the mortgagee is 7[the Government];
(c) where 6[a power of sale without the intervention of the Court is expressly conferred on the mortgagee by the mortgage-deed, and] the mortgaged property or any part thereof 8[was, on the date of the execution of the mortgage -deed], situate within the towns of Calcutta, Madras, Bombay, 9[*** 10[or in any other town or area which the State Government may, by notification in the Official Gazette, specify' in this behalf.]
11[(2)] 12*** No such power shall be exercised unless and until—
13[(a)] notice in writing requiring payment of the principal money has been served on the mortgagor, or, one of several mortgagors, and default has been made in payment of the principal money, or of part thereof, for three months after such service; or
14[(b)] some interest under the mortgage amounting at least to five hundred repees is in arrear and unpaid for three months after becoming due.
15[(3)] When a sale has been made in professed exercise of such a power, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorize the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly 'exercised; but any person damnified by an unauthorised, or improper, or irregular' exercise of the power shall have his remedy in damages against the person exercising the power.
16[(4)] The money which is received by the mortgagee, arising from the sale, after discharge of prior incumbrances, if any, to which the sale is not made subject, or after payment into Court under section 57 of a sum to meet any prior incumbrance, shall, in the absence of a contract to the contrary, be held by him in trust to be applied by him, first, in payment of all costs, charges and expenses properly incurred by him as incident to the sale or any attempted sale; and, secondly, discharge of the mortgage-money and costs and other money, if any, due under the mortgage; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorised to give receipts for the proceeds of the sale thereof.
17[(5)] Nothing in this section or in section 69A applies to powers conferred before the first day of July, 1882.]
18* * * * *
1. Section 69 numbered as sub-section (1) of that section by Act 20 of 1929, s. 34.
2. Subs. by s. 34, ibid., for certain words.
3. The words Notwithstanding anything contained in the Trustees and Mortagees Powers act, 1899 (28 of 1866) omitted by Act 48 of 1952, s. 3 and the Second Schedule.
4. Ins. by Act 3 of 1885, s. 5.
5. The words the L.G., with the previous sanction of the G. G. in C. successively adapted by the A.O. 1937 and the A.O. 1950 to read as above.
6. Ins. by Act 20 of 1929, s. 34.
7. The words the Secretary of State for India in Council successively amended by the A.O. 1937 and the A.O. 1950 to read as above.
8. Subs. by Act 20 of 1929, s. 34, for is.
9. The word Karachi omitted by the A.O. 1948.
10. The words or Rangoon have been successively amended by Acts 6 of 1904, 11 of 1915, 20 of 1929, the A.O. 1937 and the A.O. 1950 to read as above.
11. Second paragraph numbered as sub-section (2) by Act 20 of 1929, s. 34.
12. The word 'But omitted by s. 34, ibid.
13. Clause (1) was lettered (a) by s. 34, ibid.
14. Clause (2) was lettered (b) by s. 34, ibid.
15. Third paragraph numbered as sub-section (3) by s. 34, ibid.
16. Fourth paragraph numbered as sub-section (4) by Act 20 of 1929, s. 34.
17. Subs. by s. 34, ibid., for fifth paragraph.
18. The last paragraph of this section omitted by s. 34, ibid.