• Can DV court stop sale of defaulted mortgage property

My wife has filed DVC Case  against me. The case is at Trial Stage.
I have a property which is mortgaged with a bank.
I have entered into an agreement for sale of the property as i had defaulted in repayment. 
and the bank has issued Loan Recall notices.

At  this juncture my wife has filed for Stay in the sale of property as she has filed for claim which has not been awarded  

Can DV Court Stop sale of Defaulted Mortgage Property - 

If i do not proceed then the bank will start Legal Proceedings


kindly advise with supporting judgements
Asked 1 year ago in Family Law from Hyderabad, Telangana
Religion: Muslim
1) you can oppose grant of stay as property Is mortgaged to bank and you are not able to pay instalments 

2) you can offer her alternative accommodation 

3) court may not grant stay if you offer alternative accommodation 
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
Court can not restrain the bank or financial institution to recover their dues from the mortgage property.

Bank may take legal action under SARFAESI ACT and civil court can not interfere with the proceedings.

Feel free to call
Nadeem Qureshi
Advocate, New Delhi
3534 Answers
130 Consultations
4.9 on 5.0
Since the charge is created in the property the proceeding under PWDV Act, the court can not stop the bank from taking back the property
Devajyoti Barman
Advocate, Kolkata
5226 Answers
54 Consultations
4.9 on 5.0
A wife has the right to reside in the house of her husband during the subsistence of marriage. If the property is sold by the husband her right to residence will be defeated. So the court can order a stay on the sale of property. 
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
Hi, DV court has no right stop the sale of the mortgaged property.

2. If you default in making payment then Bank will go as per SERFASI Act, it is better you have to regularize your account.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. Wife has no claim on the properties of her husband during his lifetime,

2. She will not be able to get a stay order on your effort to sell your property,

3. DV Court can not stop sale of the mortgaged property by you or by the Bank.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
5.0 on 5.0
1. This is well settled proposition of law that wife does not have any right on her husband's property during his lifetime,


2. There is no need for any additional Judgement in this regard.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
5.0 on 5.0
Let your lawyer find them. We do not provide legal literature here.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
1) court will not grant stay as property is mortgaged to bank already 

2) not aware of any judgements on the said issue 
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
Under the Act, a woman can claim right of residence or the rent amount from her husband. The right of residence, which a wife undoubtedly has, does not mean the right to reside in a particular property. It may, of course, mean the right to reside in a commensurate property. But it can certainly not translate into a right to reside in a particular property. It is only in that property in which the husband has a right, title or interest that the wife can claim residence and that too, if no commensurate alternative is provided by the husband.

In your case the magistrate court which conducts  trial of DV case has no jurisdictions to pass a stay order against the sale of property on your name for the reasons that she is seeking stay order as  she has filed for claim which has not been awarded.  The court will dismiss the petition.   




Can DV Court Stop sale of Defaulted Mortgage Property - 
No, the magistrate court has no power or jurisdiction on it, it is civil matter, moreover there is no order passed on interim maintenance sought by her. 
T Kalaiselvan
Advocate, Vellore
14069 Answers
127 Consultations
5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
Ask a Lawyer

Family Lawyers

T Kalaiselvan
Advocate, Vellore
14069 Answers
127 Consultations
5.0 on 5.0
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
5.0 on 5.0
Devajyoti Barman
Advocate, Kolkata
5226 Answers
54 Consultations
4.9 on 5.0
Nadeem Qureshi
Advocate, New Delhi
3534 Answers
130 Consultations
4.9 on 5.0
Rajgopalan Sripathi
Advocate, Hyderabad
868 Answers
43 Consultations
5.0 on 5.0
Atulay Nehra
Advocate, Noida
436 Answers
15 Consultations
4.7 on 5.0
Shivendra Pratap Singh
Advocate, Lucknow
2752 Answers
41 Consultations
4.9 on 5.0
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0