44—Sale of mortgaged property in action for redemption or foreclosure
(1) Any person
entitled to redeem mortgaged property may have a judgment or order for sale
instead of for redemption in an action brought by him either for redemption
alone, or for sale alone, or for sale or redemption in the alternative.
(2) In any action,
whether for foreclosure, or for redemption, or for sale, or for the raising
and payment in any manner of mortgage money, the court, on the request of the
mortgagee, or of any person interested either in the mortgage money or in the
right of redemption, and, notwithstanding that—
(a) any
other person dissents; or
(b) the
mortgagee or any person so interested does not appear in the action,
and without allowing any time for redemption or for payment of any mortgage
money, may, if it thinks fit, direct a sale of the mortgaged property, on such
terms as it thinks fit, including the deposit in court of a reasonable sum
fixed by the court to meet the expenses of sale and to secure performance of
the terms.
(3) But, in an action
brought by a person interested in the right of redemption and seeking a sale,
the court may, on the application of any defendant, direct the plaintiff to
give such security for costs as the court thinks fit, and may give the conduct
of the sale to any defendant, and may give such directions as it thinks fit
respecting the costs of the defendants or any of them.
(4) In any case within
this section the court may, if it thinks fit, direct a sale without previously
determining the priorities of incumbrancers.
(5) In this
section—
"mortgaged property" shall include the estate or interest which a mortgagee
would have had power to convey if the statutory power of sale were applicable.
(6) For the purposes
of this section the court may, in favour of a purchaser, make a vesting order
conveying the mortgaged property, or appoint a person to do so, subject or not
to any incumbrance, as the court thinks fit; or, in the case of an equitable
mortgage, may create and vest in the mortgagee a legal estate to enable him to
carry out the sale in like manner as if the mortgage had been made by way of
legal mortgage.