Comparative Civil Procedure
Procedure & Regularity for Accuracy, True Dispute Resolution and Happiness

The Action for Delivery of the Subject Matter of Sale in the Sale of Mortgaged Immovable Property by Private Instrument A Critical Analysis of Supreme Court Judgment No. 9609970909100268, Dated 21 August 2017, Issued by the Third Chamber of the Supre

Document Type : Analysis & Critics on Jurisprudence

Author

Mahmoud Kazemi

Associate Professor of Private and Islamic Law, Faculty of Law and Political Science, University of Tehran

Abstract
In the case under consideration, immovable property mortgaged to a bank was transferred by the mortgagor to a third party by means of a private instrument, without the mortgagee’s consent. Relying on this transaction, the purchaser brought an action against the seller seeking an order compelling the delivery of the subject matter of the sale. The court of first instance initially issued an order declaring the action inadmissible. Following the reversal of that order by the appellate court, the former proceeded to examine the claims for a declaration that the sale had taken place and for recognition of the claimant’s ownership. Having established that the sale had occurred, the court of first instance entered judgment against the defendant and ordered delivery of the property, notwithstanding that the official title deed remained registered in the defendant’s name. Upon an appeal on points of law, the Third Chamber of the Supreme Court reviewed the case and overturned the judgment on the ground that a sale of mortgaged property without the mortgagee’s authorization is void (bāṭil).

Keywords

Sale of mortgaged property
discharge of mortgage
non-effectiveness (ghayr-e nāfez)
Subjects
Comparative Civil Procedure
Volume 2, Special Number
Commemorative Volume Honoring The Judge Hassan Ghaffarpour (Maraghi) President of 3rd Branch of the Supreme Court, Iran
2026

  • Receive Date 10 October 2026
  • Publish Date 23 October 2026

Guide for Authors

Submit Manuscript

Reviewers

Contact Us