"27. An agreement to sell or an agreement
to mortgage does not involve any transfer of
right in rem but create only a personal
obligation. Therefore if specific performance is
sought either in regard to an agreement to sell
or an agreement to mortgage, the claim for
specific performance will be arbitrable. On the
other hand, a mortgage is a transfer of a right
in rem. A mortgage suit for sale of the mortgaged
property is an action in rem, for enforcement of
a right in rem. A suit on mortgage is not a mere
suit for money. A suit for enforcement of a
mortgage being the enforcement of a right in rem,
will have to be decided by courts of law and not
by arbitral tribunals. The scheme relating to
adjudication of mortgage suits contained in Order
34 of the Code of Civil Procedure, replaces some
of the repealed provisions of Transfer of
Property Act, 1882 relating to suits on mortgages
(Sections 85 to 90, 97 and 99) and also provides
for implementation of some of the other
provisions of that Act (Sections 92 to 94 and
96). Order 34 of the Code does not relate to
execution of decrees, but provides for
preliminary and final decrees to satisfy the
substantive rights of mortgagees with reference
to their mortgage security. The provisions of
Transfer of Property Act read with Order 34 of
the Code, relating to the procedure prescribed
for adjudication of the mortgage suits, the
rights of mortgagees and mortgagors, the parties
to a mortgage suit, and the powers of a court
adjudicating a mortgage suit, make it clear that
such suits are intended to be decided by public
fora (Courts) and therefore, impliedly barred
