Div 10Taking Accounts of Property mortgaged, and of the Sale thereof.

Division 10.—Taking Accounts of Property mortgaged, and of the Sale thereof. Inquiry into mortgage, &c. Cf. No. 37 1924 s. 106. 77.—(1.) Upon application by motion by any person claiming to be a mortgagee of any part of the bankrupt’s real or leasehold estate, and whether the mortgage is by deed or otherwise, and whether the mortgage is of a legal or equitable nature, the Court shall proceed to inquire whether the person is the mortgagee, and for what consideration and under what circumstances. (2.) If it is found that the person so applying is the mortgagee, and if no sufficient objection appears to the title of the person to the sum claimed by him under the mortgage, the Court shall direct such accounts and inquiries to be taken as are necessary for ascertaining the principal, interest, and costs due upon the mortgage and of the rents and profits, or dividends, interest, or other proceeds received by the person, or by any other person by his order or for his use in case he has been in possession of the property over which the mortgage extends, or any part thereof, or which he might have received but for his own wilful default. (3.) The Court, if satisfied that there ought to be a sale, shall direct notice to be given in such newspapers as the Court thinks fit, when and where, and by whom and in what way the property, or the interest therein so mortgaged, is to be sold, and that the sale be made accordingly, and that the trustee (unless it be otherwise ordered) shall have the conduct of the sale. (4.) At any such sale the mortgagee may bid and purchase. Conveyance. 78.—(1.) All proper parties shall join in the conveyance to the purchaser, as the Court directs. (2.) If any person, when directed by the Court in pursuance of the last preceding sub-rule, refuses or fails to join in the conveyance to the purchaser, the Court may direct the trustee or an officer to execute such instruments necessary to effect the conveyance as the person refuses or fails to execute. Proceeds of sale. 79.—(1.) The moneys to arise from the sale shall be applied in the first place in payment of the costs, charges, and expenses of the trustee, of and occasioned by the application to the Court, and of the sale and attendance thereat, and in the next place in payment and satisfaction, so far as the moneys extend, of what shall be found due to the mortgagee, for principal, interest, and costs, and the surplus of the moneys (if any) shall then be paid to the trustee. (2.) In case the moneys to arise from the sale are insufficient to pay and satisfy what are found due to the mortgagee, the mortgagee may prove as a creditor for the deficiency, and receive dividends thereon rateably with the other creditors, but so as not to disturb any dividend then already declared. Proceedings on inquiry. 80. For the better taking of the accounts and inquiries in pursuance of rule 77 of these Rules, and making a title to the purchaser, all parties may be examined by the Court upon interrogatories or otherwise as the Court thinks fit, and shall produce before the Court upon oath all deeds, certificates, papers, books, and writings in their respective custody or power relating to the estate or effects of the bankrupt, as the Court directs. Accounts, &c. 81. In any proceeding between a mortgagor and mortgagee, or the trustee of either of them, the Court may direct any necessary inquiries or accounts to be made or taken notwithstanding that it may appear that there is some special or further relief sought for or some special issue to be tried, as to which it may be proper that the matter should proceed in the ordinary way. Special directions as to mode of taking account. 82. The Court may either by the order directing the account to be taken or by any subsequent order, give special directions with regard to the mode in which the account is to be taken or vouched, and in particular may direct that, in taking the account, the books of account in which the accounts in question have been kept shall be taken as prima facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as they may be advised. Accounts to be verified. 83.—(1.) Where any account is directed to be taken, the accounting party, unless the Court otherwise directs, shall make out his account and verify it by affidavit. (2.) The items on each side of the account shall be numbered consecutively, and the account shall be referred to in the affidavit as an exhibit and filed in the Court. Mode of vouching accounts. 84. Upon the taking of any account the Court may direct that the vouchers shall be produced at the office of the solicitor of the accounting party, or at any other convenient place, and that only such items as are contested or surcharged shall be brought before the Court. Surcharge. 85\. Any party seeking to charge any accounting party beyond what he has by his account admitted to have received shall give notice thereof to the accounting party, stating so far as he is able, in a short and succinct manner, the amount sought to be charged and the particulars thereof. Accounts and inquiries to be numbered. 86\. Where by any order, whether made in Court or in chambers, any accounts are directed to be taken or inquiries to be made, each such direction shall be numbered so that, as far as may be, each distinct account and inquiry may be designated by a number. Just allowances. 87. In taking any account directed by any order, all just allowances shall be made without any direction for that purpose. Registrar to report delay. 88. The Registrar shall at the beginning of each sittings report to the Court all the cases in which he considers that there has been any undue delay in the proceedings before the Court. Expediting proceedings in case of undue delay. 89. If it appears to the Court on the representation of the Registrar or otherwise that there is any undue delay in the prosecution of any accounts or inquiries, the Court may require that party having the conduct of the proceedings, or any other party, to explain the delay, and may thereupon make such order with regard to expediting the proceedings or the conduct thereof, or the stay thereof, and as to the costs of the proceedings, as the circumstances of the case require, and for those purposes any party may be directed to summon the persons whose attendance is required and to conduct any proceedings and carry out any directions which may be given. Division, 11.—Appropriation of Pay, Salary, Pensions, and other Income. Notice to bankrupt of application. 90.—(1.) When a trustee intends to apply to the Court for an appropriation under section 101 of the Act, he shall give to the bankrupt notice of his intention so to do. (2.) The notice shall specify the time and place fixed for hearing the application, and shall state that the bankrupt is at liberty to show cause against the order being made. (3.) The notice and order shall be in Forms 99 and 101 respectively. Copy of order to be served. 91.—(1.) Where an order is made under sections 101-102 of the Act, the Registrar shall give to the trustee or Official Receiver, as the case may be, a sealed copy of the order, and the trustee or Official Receiver shall communicate the contents of the order to the person or proper officer by whom the pay, pension, salary, emoluments, profit, wages, earnings or income is payable. Review of order. (2.) Where an order has been made for the payment by a bankrupt, or by his employer for the time being, of a portion of his income or salary, the bankrupt may, upon his ceasing to receive a salary or income of the amount he received when the order was made, apply to the Court to rescind the order, or to reduce the amount ordered to be paid by him to the trustee.