MOHAMMED SALEH OSMAN, Appellant-Defendant v. NASIM AHMED MANSUR, Respondent-Plaintiff
Civil Procedure-Timely applications
Mortgage and Charge-Foreclosure-Mortgagee in possession must account 10'.
any rents and profits
Plaintiff who was a mortgagee in possession of the' defendant's bouse
obtained judgement .in the High Court for the amount owed by the de-
fendant. Afterwards the defendant applied for an account to be taken of
the fact that the pl$tiff had been in possession. The Court' of Appeal
held that according to section 13 of the Foreclosure Rules 1914 the court
ought to have ordered an accounting to be taken of any rents and profitl
whether the defendant applied for it or not.
Foreclosure Rules 1914, So 13.
Appeal
February 27, 1927. Bell, C.J.: The plaintiff is the mortgagee
of the defendant's house under a duly registered mortgage deed. In
accordance with the terms of the deed the mortgagee' is entitled to
possession and on his own admission he has been in possession. '
After .the High Court had . given judgement in' the plaintiff's
favour f'pI the amount of' the debt, the defendant applied for an
account to be taken on the ground that 'the mortgagee had 'been' in,
• Court: Bell, cr, Owen and Hamilton-Grierson, 11.
possession. The High Court refused the application on the ground
that it was out of time and that Ithere were no accounts to be taken. .
Section 13 of the Foreclosure Rules 1914 states clearly ''where
the mortgagee, is in possession .'... he shall' only be entitled to . • .
relief on condition that he accounts for all rents and profits received by
him ... or charge himself with a fair occupation rent.":
Therefore in my opinion the court ought to have ordered an
account to be taken whether the defendant applied for it or not.
For these reasons the appeal must 'be allowed with costs and the
case remitted to the High Court for an account to be' taken.
Owen].: I concur.
Hamilton-Grierson]: I concur.
Appeal allowed