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Cheltenham & Gloucester BS v Krausz

[1997] 1 All ER 21

Case summary last updated at 09/01/2020 17:38 by the Oxbridge Notes in-house law team.

Judgement for the case Cheltenham & Gloucester BS v Krausz

 P was a mortgagor and a warrant for possession had been given to D but D had yet to execute the order, since under the current market conditions the house price would have been less than the debt owed to D. P sued to try and obtain permission to sell the house themselves under s.36 AJA and suspend D’s possession under s.91(2) LPA 1925. CA rejected this, saying that s.36 only postponed possession to enable the mortgagor to repay from sources other than selling the house or, if a sale was proposed, the court had to be satisfied that it would be enough to discharge the entire debt. S.36 did not empower the court to suspend possession in order to permit the mortgagor to sell the mortgaged premises where the proceeds of sale would not suffice to discharge the mortgage debt unless other funds would be available to make up the shortfall. Therefore it could not suspend the warrant for possession nor allow P to sell the house. 

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