Mortgaged property to sale otherwise than by instituting a suit for the sale in enforcement of mortgage under Order XXXIV Rule 14 CPC notwithstanding anything contained in Order II Rule 2 CPC.

 Mere fact that mortgage deed has been executed in addition to a promissory note will not exclude the summary jurisdiction of Court under Order XXXVII Rule 2 CPC. However, the decree holder shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for the sale in enforcement of mortgage under Order XXXIV Rule 14 CPC notwithstanding anything contained in Order II Rule 2 CPC.

The law thus provide dual remedy to the petitioner by filing a suit under Order XXXVII Rule 2 CPC on the basis of pro note and suit under Order XXXIV Rule 14 CPC for enforcement of mortgage deed and such suit is not barred by Order II rule 2(b) CPC. Therefore, mere fact that mortgage deed has been executed in addition to a pro-note will not exclude the summary jurisdiction of Court under Order XXXVII Rule 2 CPC for the enforcement of promissory note.

document shall be regarded as promissory note if it fulfills the following requirements:-

(i) If An unconditional undertaking to pay,

(ii) The sum should be a sum of money and should be certain,

(iii) The payment should be to or to the order of a person who is certain, or to the bearer, of the instrument, And

(iv) the maker should sign it,

Civil Revision 33725/19

Muhammad Zaheer Vs Abdul Majeed

Mr. Justice Abid Aziz Sheikh

08-09-2021

2021 LHC 4494