The Judgment of the Court was delivered by
Sen, J.:— This is an appeal against an order passed by the District Judge of the Assam Valley Districts affirming a final decree for foreclosure passed against the Defendants Appellants who are the mortgagors. The facts briefly are as follows:—
A suit was instituted upon the mortgage and a preliminary decree for foreclosure was passed on the 8th May, 1941. The decree was for Rs. 3,250 for principal, Rs. 786 for interest and Rs. 398 for costs, totalling a sum of Rs. 4,434. An appeal from the decree was taken by the Defendants-mortgagors to the District Judge and there was a compromise, in accordance with the terms of which the Defendants were permitted to pay the decretal dues in certain instalments. It is not necessary for us, in view of what we are going to hold to deal in any detail with the terms of the compromise. It is sufficient to say that the Defendants were allowed to pay the decretal amount in instalments. The Defendants paid the first instalment of Rs. 1,000 but defaulted in paying the second within the time fixed by the terms of the compromise. On the 6th of May, 1942, the Plaintiff decree-holder applies for a decree for foreclosure in accordance with the provisions of Or. 34, r. 3 of the Code of Civil Procedure and obtained a final foreclosure decree. The application for the final foreclosure decree was made ex parte. Against this decree an appeal was taken to the District Judge by the Defendants mortgagors, and one of the grounds argued there was that no final decree for foreclosure could be passed except on notice to the Defendant and that there being no such notice ihe decree cannot stand. The learned judge repelled this contention holding that Or, 34, r. 3 of the Code of Civil Procedure did not provide for any notice and that, therefore, there was no defect in law in this respect. Against this decision the Defendants mortgagors have appealed and two points have been taken before us, viz., (1) that the final decree for foreclosure should not have been passed without notice to the Defendants mortgagors and that the final decree having been passed without such notice it should be set aside and (2) that the compromise decree altered the nature of the decree which had been passed originally into a decree for the sale of the mortgaged properties and, therefore, there was no scope for the passing of a decree for foreclosure. We do not propose to deal with the second point inasmuch as we are of opinion that the first point must prevail.
2. It is true there is no express provision in the Code that there must be a notice given before an application is made for a final decree for foreclosure. But it seems to us that the provisions of Or. 34, rr. 2 and 3 of the Code make it abundantly clear that such notice is required. Or. 34, r. 2 states:
“That if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed, or the defendant falls to pay, within such time as the Court may fix, the amount adjudged due in respect of subsequent costs, charges, expenses and interest, the plaintiff shall be entitled to apply for ??? final decree debarring the defendant from all right to redeem the property.”
3. What I wish to stress here is that the rule provides not that a final decree for foreclosure shall be automatically passed. The Rule provides that the Plaintiff will be entitled merely to apply for a final decree. Under the old law where the substance of this matter was contained in the Transfer of Property Act, the corresponding provision was that if payment was not made within the time fixed the Defendant shall be debarred from all right to redeem the property. This was also the provision in the Code of Civil Procedure before the amendment of 1929. The rule now is quite different. Even if payment is not made the Defendant is not debarred from all right to redeem the property. All that happens is that the Plaintiff is given the right to apply for a final decree. This alteration in the rule is significant and the significance of the alteration is further brought out by the present r. 3 of Or. 34 which says that before a final decree debarring the Defendant from all right to redeem the mortgaged property has been passed, the Defendant may make payment into Court of all amounts due from him under sub-r. (1) of r. 2 and thereupon the Court shall on the application made by the Defendant pass a final decree ordering the Plaintiff to deliver up the documents, etc., to the Defendant. It is thus clear that the Defendant is given the right to make payment of his dues even after application for final foreclosure decree is made so long as he pays it before the final decree is passed. Under the old law r. 3 stood as follows:
“Where, on or before the day fixed the defendant pays into Court the amount declared due as aforesaid together with such subsequent costs as are mentioned in rule 10, the Court shall pass a decree ordering the plaintiff to deliver up the documents which under the terms of the preliminary decree he is bound to deliver up……..”.
4. Under old r. 3 the Defendant had to pay up the amount before the day fixed. Now, under the new r. 3 the Defendant is given time to pay the amount before the final decree debarring the Defendant from the right to redeem the property is passed. It seems to us quite clear from these two amendments that whatever may be the view taken regarding the law as it stood before the present amendments under the present law the Defendant is entitled to get notice of an application for a final decree for foreclosure before such final decree is passed, otherwise it would be futile to give the Defendant the right to pay up the amount and save his property before the passing of the final decree. How is the Defendant to know when a final decree is going to be passed, unless notice is given to him of an application for such final decree? It is when he gets such notice that he gets an opportunity of coming into Court and putting in the money before passing of the final decree and thus saving his property. The fact that the Plaintiff under the new law does not get a final decree automatically but has to make an application therefor and the fact that the Defendant is allowed to save his property before the passing of the final decree, both indicate that notice to the Defendant of the application for a final decree is necessary.
5. Mr. Bose on behalf of the Respondent argued that there is a rule passed by this Court, viz., r. 185 of the Civil Rules and Circular Orders of the High Court, to the effect that before, a final decree for foreclosure is drawn up a notice is put upon the board of the Court so that the pleaders of the parties may examine the final decree as finally drawn up and give their assent thereto. He contends that this must have been done in this case and that this was sufficient notice of the application for a final decree. In our opinion this Rule is not germane to the question which we have been discussing. This Rule is the usual rule which prevails, vis., that the lawyers of both sides are invited to see that the decree as drawn up corresponds to the decree as passed. It amounts to nothing more. The putting up of a notice that a decree will be drawn up on a certain day does not amount to giving notice to the Defendant that an application for a final decree will be made.
6. If, therefore, the Defendant has not had any notice of the application for a final decree, he would certainly not know anything about this notice from the notice board. It is idle to expect the Defendant or his legal advisers to inspect the notice board of the Court every day, to see whether he is called upon to assent to the drawing up of a decree. It is only after he has notice that a decree has been applied for and obtained that the Defendant or his lawyers would keep a watch on the Court's notice board to see when the decree will be drawn up. We do not think, therefore, that this argument of Mr. Bose helps the Plaintiff at all.
7. It is true that there was a decision of;v Division Bench of this Court under the old law that under sec. 87 of the Transfer of Property Act an order absolute for foreclosure could be passed without notice to the mortgagor. [See the case of Tara Pado Ghose v. Kamini Dassi*(1)]. The matter came up again before three Judges of this Court, amongst whom was Maclean, C.J They dissented from the view taken in the case of Tara Pado Ghose v. Kamini Dassi* and referred the question for decision to a Full Bench together with certain other questions. In making the Reference Maclean, C.J, expressed the view that although he was not prepared to say that no order under sec. 87 or 89 of the Transfer of Property Act could be made without notice, nevertheless he was of opinion that when an order has been made without notice to the mortgagor the Court has power to set aside the order made without notice on an application made by the mortgagor on the ground that it was made ex parte, and he differed from the view that the Court had no such power. This point, however, was not dealt with by the Full Bench as the matter was decided on another point [see Bibi Tasliman v. Hariher Mahto(2)].
8. The position, therefore, is this: Under the old law there are two dissenting views expressed by this Court, one in the case of Tara Pado Ghose v. Kamini Dassi* and the other in the case of Bibi Tasliman v. Harihar Mahato, where the Judges differed from the view taken by the Judges in Tara Pado's case. We have also this fact that the law now has been amended; in these circumstances we consider that we are not bound to follow the decision in Tara Pado's case.
9. Having regard to the amendments made we are clearly of opinion that before a final decree for foreclosure can be passed notice of the application for a final decree must be given to the Defendant.
10. We, therefore, set aside the order passed by the learned District Judge affirming the decree of the trial Court. The trial Court shall issue notice of the application for a final decree to the Defendants mortgagors and give the Defendants mortgagors the right to make such payment into Court to save their property as is given to them under Or. 34, r. 3 of the Code of Civil Procedure.
11. Having regard to all the circumstances of this case we are of opinion that the parties should bear their own costs throughout.
12. Let the records go down as early as possible.
Harries, C.J:— I agree.