42. When mortgagee in possession may be dispossessed .-

(1) When any property of a ward is in the possession of a mortgagee, or any person claiming under a mortgagee, the Government may, on being satisfied that it is expedient in the public interest that the estate should be preserved and such incumbrancer should deliver up possession of the mortgaged property, make a declaration to that effect, and direct the court to take possession thereof; the court shall thereupon, by an order in writing, require such incumbrancer to deliver up possession of the same to the manager at the end of the then current financial year. (2) If such incumbrancer refuses or neglect to obey such order, the Collector may, without resorting to a civil court, enter upon the property, and summarily evict therefrom the said incumbrancer and any other person obstructing or resisting on his behalf. (3) The dispossession of the incumbrancer under sub-sections (1) and (2) shall not deprive him of any right for the recovery of arrears of rent due to him at the date of his dispossession. (4) If in the instrument of mortgage under which the incumbrancer is in possession of the property, no rate of interest is specified, the Collector shall, in cases where the mortgage debt has been notified to or admitted by him, offer to the incumbrancer the rate of interest which appears to him to be reasonable; and pass an order fixing the rate accordingly. Copy of the order shall be served upon the incumbrancer in the manner prescribed by the Code of Civil Procedure, 1908 (5 of 1908), for service of summons upon a defendant. If the incumbrancer is dissatisfied with the rate of interest so fixed, he may, within three months from the date of service upon him of such order, institute a suit against the ward in the District Court within whose jurisdiction the property mortgaged or any portion thereof is situate, and the said court shall, if the mortgage debt has been notified or admitted as aforesaid, pass a declaratory decree fixing such rate of interest as it may deem reasonable. If no such suit be instituted within the said period, the incumbrancer shall be deemed to have agreed to the rate fixed by the Collector. (5) If an incumbrancer is dispossessed of property under this section, he shall be entitled to recover the amount due to him under the instrument of mortgage on the date of such dispossession together with- (a) interest as from that date, on the principal money outstanding on such date at the rate stipulated in the instrument of mortgage or, if there is no such stipulation, at the rate fixed under sub-section (4), and (c) any amount to which he may, in case of dispossession, be entitled under the instrument of mortgage or under any law for the time being in force,in the same manner as if-- (i) he were a simple mortgagee of such property under the said instrument, and (ii) the entire money as computed above were advanced by way of loan under the said instrument: Provided that the rights of the incumbrancer under this sub-section shall be subject to- (a) the provisions of section 40; and (b) the charges specified in Classes I and II in section 31, except those relating to the liquidation of debts payable by the ward and to the upkeep of the furniture, equipage, livestock and other movable property belonging to the ward. (6) The Collector shall, as soon as conveniently may be after the expiration of the financial year commencing with the date of such dispossession and of every successive financial year, declare, subject to the approval of the court the gross annual rents and profits realised from such property, the several heads of expenditure and the balance, and such declaration shall be conclusive evidence of the statements therein contained. A copy of such declaration shall be furnished to be dispossessed incumbrancer free of charge.