Please explain what is meant by “foreclosure” in the context of Mortgage?
Foreclosure in the context of Mortgage: It is one of the most valuable remedy/rights conferred upon the Mortgagee, in the case of mortgage by conditional sale and an anomalous mortgage, by the terms of which the Mortgagee is entitled to foreclose. “Foreclosure” means the forfeiture of a Mortgagor’s right to redeem in case of the above two Mortgages. It has to be noted that foreclosure can be effected only by decree of courts and not by act of parties. A Court”s decree that a Mortgagor shall be absolutely debarred of his right to redeem the mortgaged property is called a decree for foreclosure and a suit in which such a decree is passed in a suit for foreclosure. Mortgagee’s this right to obtain a decree for foreclosure in the circumstances above is subject to a Contract to the contrary. It has to be further noted that, even in case of a mortgage by conditional sale or anomalous mortgage suit for foreclosure cannot be filed when:-
- Mortgagor is a trustee of the Mortgagee holding mortgaged property in a representative character cannot himself foreclose the Mortgagor”s interest;
- When the mortgaged property is railway, canal or other works in the maintenance of which public are interested, a suit for foreclosure is not maintainable;
- One of several mortgagees or his assignee or a purchaser of a part of the Mortgagee”s rights cannot foreclose in respect of his fractional interest, save in case where Mortgagees have severed their respective interests under the Mortgage with the consent of the mortgagor. This provision is analogous to the principle of indivisibility of the Mortgage security and is corollary to section 60 of the Transfer of Property Act which forbids partial redemption in case of several mortgagors.