The Judgment of the Court was delivered by

P.N Mookerjee, J.:— This is the mortgagor judgment-debtors' appeal against an order of the learned Subordinate Judge, Second Court, 24 Parganas, rejecting their application under Order IX. Rule 13 of the Code of Civil Procedure for the setting aside of an exparte final mortgage decree, passed against them. The suit in question was Title Suit No. 55 of 1950 of the Second Court of the Subordinate Judge, 24 Parganas, in which the respondent Bank, or rather, its predecessor, was the plaintiff and the appellants were the defendants. The claim was on a mortgage to the tune of over Rs. 75000/-.

2. The suit was preliminarily decreed on contest on April 26, 1955. Under the said preliminary decree, the period of grace extended up to June 26, 1955. No payment having been made within the aforesaid time allowed, the decree-holder on October 13, 1955 applied for making the preliminary mortgage decree final. On the aforesaid application, the learned Subordinate Judge, by his first order (No. 96 dated December 16, 1955) directed issue of notice “on filing requisite” by January 6, 1956. Later on, however, by his next order No. 97 dated January 5, 1956, he recalled the above direction for issue of notice and, having recorded in his said order that no notice need be served, he made the final decree, as prayed for by the decree-holder. The decree was “sealed and signed” on February 23, 1956.

3. The present appellants, who were the judgment-debtors in the aforesaid final mortgage decree, applied, on March 21, 1958 under Order IX, Rule 13 of the Code of Civil Procedure for the setting aside of the same. To that application, there was an objection eventually filed by the decree-holder on May 9, 1958 and the said application came up for hearing before the court on June 7, 1958. On that day, a preliminary objection was taken to the maintainability of the aforesaid application, presumably upon the ground that Order IX, Rule 13 of the Code would not apply to such a case and, no notice being necessary to reserved, upon the mortgagors judgment-debtors of an application under Order XXXIV, Rule 5 of the Code for making the preliminary mortgage decree final, there was no case for setting aside the final mortgage decree made as aforesaid under the said provision (Order IX, Rule 13) even on the admitted position that no notice of the said application was either issued or served upon the mortgagors judgment-debtors.

4. The above preliminary objection appears to have been accepted by the learned trial Judge upon the view that law does not require issue or service of any notice of the application for making the preliminary decree final and, accordingly, the judgment-debtors could not make out any case under Order IX, Rule 13 of the Code of Civil Procedure, even if their other allegations be correct. As a matter of fact, it appears quite clear that before the trial court, the parties fought only on the question as to the necessity or otherwise of notice in connection with the application for making the preliminary mortgage decree final. The learned trial Judge, accordingly be cause of his aforesaid view of law, rejected the judgment-debtors' application and dismissed the Miscellaneous case. Against this order, the present appeal was filed by the judgment-debtors.

5. On behalf of the appellants, judgment-debtors, Mr. Bakshi drew our attention to two decisions of this Court, reported in Mdhadeo Agarwala v. Joy Narayan Senehiram, (1) 53 C.W.N 326 and Braja Kishore De v. Gour Chandra Ray, (2) I.L.R (1946) 1 Cal. 333. Those decisions were also referred to before the learned trial Judge. But they were distinguished by him upon the ground that (1) 53 C.W.N 326 was a case of foreclosure and not for sale like the present and (2) I.L.R (1946) 1 Cal. 333 related to a suit to which the Bengal Money Lenders Act, 1940 applied in which particular statute sec. 34 expressly provided that in all cases under the said Act, notice in the prescribed form should be given to the defendant before the decree was made final.

6. Mr. Bakshi contended that the distinctions on which the aforesaid two decisions were put aside by the learned trial Judge were not relevant distinctions at all and they should not have influenced him in the decision of the present matter and, in the light of the above authorities, the learned trial Judge ought to have held that, so far, at least as this court is concerned, notice has been held to be necessary in connection with an application for making the preliminary mortgage decree final under Order XXXIV, Rule 5 of the Code of Civil Procedure and such notice has to be given before the said application is allowed and the preliminary decree in question is made final. Mr. Bakshi also drew our attention to the Allahabad case (3) I.L.R 51 All. 634 (Awadh Bihari v. Fahiman) on which in particular, the decision in (2) I.L.R (1946) 1 Cal. 333 relies. In the course of arguments, we also had occasion to look into the relevant form prescribed by this Court, under Order XXXIV, Rule 5 of the Code, in the matter of final mortgage decree. That form provides, inter alia, that the court would pass the final decree “after hearing the parties.” That, obviously, contemplates that both the parties must be aware of the final decree proceedings as otherwise there can be no question of and no occasion for hearing the parties. This form is prescribed under the rule-making power of this Court, possibly, section 122, but it is also referred to in Order XLVIII, Rule 3 of the Code, which is a rule, made under section 121 of the Code and forms part of the first schedule, and accordingly, under the express terms of that section, forms a part of the Code itself. It is clear, therefore that the above prescribed form for purposes of and relating to Order XXXIV, Rule 5 of the Code, is a statutory form and has effect as part of the Code itself.

7. On behalf of the respondent decree-holder, Mr. Dutt contended that the decision in (1) 53 C.W.N 326 was, as said by the learned trial Judge, a decision in a foreclosure suit and between matters of foreclosure and matters of sale, there was a fundamental distinction which was pointed out in that very decision, namely, that on the making or passing of the foreclosure final decree, the mortgagor judgment-debtor loses all rights in the mortgaged property while on the making or passing of a final decree for sale, he is not so much affected and he can still save the mortgaged property by paying the mortgage money at any time up till the date of confirmation of the sale. Mr. Dutt also contended that, under the terms of Order XLVIII, Rule 3, in the light of the amendment, made by this Court, or, even, on its original terms, the forms may be applied with such variations as the particular case before the Court may re quire and, accordingly mere mention in the form that the parties have to be heard would not necessarily lead to the conclusion that they (the parties) must be aware or must be made aware of the final decree proceedings before the same, that is, the final decree, is actually made. Mr. Dutt, further, drew our attention to a decision of the Patna High Court in Surendra Kumar Singh v. Mukund Lal Sahu (4) A.I.R 1949 Pat. 68, which though decided by a single Judge, was, apparently, based upon a Bench decision of the said High Court, referred to therein, and to the earlier Allahabad case in Mahadeo Pande v. Som Nath Pande and Salig Pande (5) I.L.R 48 All. 828 : A.I.R 1926 All. 757 which appears to have taken a contrary view on the point and to have ruled, rather summarily, that, under the statute or law, no notice is necessary to be given of an application for making a preliminary mortgage decree final under Order XXXIV, Rule 5 of the Code, and also to an earlier decision of this Court, reported in Mahim Chandra Guha Deb Barman v. Naba Chandra Chaudhury (6) A.I.R 1931 Cal. 58, where also apparently at least a similar view was taken, though their Lord-ships indicated that, in the exercise of inherent powers of the Court, the final mortgage decree, in such a case, may be set aside.

8. We may add here, that, on the other side, our attention was drawn by Mr. Bakshi to a decision of the Madras High Court also namely, Sri Murati Swamiar v. A. Subramania Ayyar (7) A.I.R 1929 Mad. 393 : 118 Indian Cases 801. To that, Mr. Dutt's rejoinder was that, in Madras, the particular provision, Order XXXIV, Rule 5 was itself amended by incorporating therein a requirement as to service of notice, in sub-rule 3 thereof. That however, would not be an effective answer and would not explain the above decision, as the amendment in question was made in 1930, that is, after the aforesaid decision. Indeed, the amendment itself might have been prompted by the above decision which showed the law on the point as, rather, in an unsatisfactory and uncertain state and it may be worth considering for this court too whether the law on this particular point should be made clear by a similar or other appropriate amendment.

9. Having considered the matter in the light of the aforesaid authorities and in the light of the relevant provisions of law, to which abundant reference has been made above, we are of the opinion that, so far at least as this court is concerned, on the principle of “Audi Alteram Partem” apart from anything else, service of notice in some form or other may well be held to be necessary before the preliminary decree is made final. For our present purpose, however, it is not necessary to go to the whole of that length and we may content ourselves by saying that, at least, as held in the Allahabad case (3) I.L.R 51 All. 634 and (2) I.L.R 1946(1) Cal. 333 supra the defendant is entitled to have the final mortgage decree, made exparte or in his absence, as aforesaid set aside by showing that he was prevented from appearing at the hearing of the plaintiff's application for the same because of his want of knowledge thereof in circumstances which would make it sufficient cause for such non-appearance within the meaning of Order IX, Rule 13 of the Code of Civil Procedure which would in the light and upon the authority of the said decisions obviously apply to the case. That, indeed, appears to have been accepted in this Court and in the Allahabad High Court, too, and on the authorities of this Court, that much, at least, clearly follows as an accepted position in law. The permissible variation, again, in the prescribed form, to which Mr. Dutt referred, would not, in our opinion, include dispensing with the hearing of a party altogether for his absence or non-appearance due to or in circumstances beyond his control.

10. In the above view, the present case would clearly come under at least, the second part of Order IX, Rule 13 of the Code and it not being disputed, on the materials before us, that the appellants had no knowledge of the final decree proceedings before the said decree was actually made, it must be held that the said final decree, made exparte, in circumstances aforesaid, should be set aside.

11. We may also add that a similar conclusion would follow, if the case be approached from another point of view. The present suit was admittedly contested, at least upto the state of the preliminary decree, and the mortgagors-judgment-debtors were represented by a lawyer, who was on record. There is nothing to show that the authority of this particular lawyer ended by or upon the passing of the preliminary decree. He was, therefore, their (the defendants mortgagors) lawyer on record and the said defendants must be taken to be defendants who had entered appearance in the suit for all purposes upto the stage of the final decree, that is, until the final disposal of the suit. In these circumstances, at least under the rule of this Court (Vide Rule 21 of the Civil Rules and Orders) copy of the decree-holder's aforesaid application under Order XXXIV, Rule 5 of the Code, ought to have been served upon the defendants' said lawyer before the above application was entertained or heard, or at any rate, before it was disposed of. It is true that under the aforesaid Rule copies only of such applications as will be “considered by the Judge material” would have to be served, but the application for making a preliminary decree final is certainly a material application. Possibly, and that is rather unfortunate—this aspect of the matter was rot noticed or brought to the notice of the learned trial Judge, when he passed his above order, making the relevant preliminary mortgage decree final without any intimation being given to the defendants or their aforesaid lawyer. From this point of view also, the final decree, as made by the learned trial Judge, cannot be sustained.

12. Considering the matter, then, from all possible points of view, we think that this appeal should be allowed, the order of the learned Subordinate Judge should be reversed and the impugned final decree should be set aside and the proceedings for making the preliminary mortgage decree final should continue afresh in the presence of the defendants, judgment-debtors.

13. As, however, the defendants are the appellants before us and they are now fully aware of the final decree proceedings, no further notice need be served upon them but the above proceedings will continue in the Court below and the defendants will take all such steps as they may be advised to take in the matter of and in connection with the said proceedings in accordance with law. If they fail to take appropriate steps of the date or dates, fixed by the court below, for the continuation or hearing of the above final decree proceedings, they will be doing so at their own risk.

14. The appeal thus succeeds as above. The case will now go back to the court below for a proper decision and final disposal in accordance with law in the light of the observations and directions, made and given in this judgment.

15. In the circumstances of this case, we would not make any order for costs in this appeal but we would direct the defendants to pay, as part of the mortgage dues, to the decree-holder Bank the costs, inrurred by it in the execution case upto the stage it has gone on till now, as the prayer of the said defendants judgment-debtors for interim stay of those proceedings was allowed by this Court on certain conditions but those conditions were not complied with by the said judgment-debtors.

16. Let the records go down as early as possible.

Niyogi, J.:— I agree.

S.K.B