Randhir Singh, J.
1. This is an appeal from an order of remand passed by the Civil Judge, Hardoi. It appears that a suit for recovery of money and for foreclosure was instituted against two persons Nathu Lal and Munnu Lal on the basis of a mortgage deed dated 23-9-1948 -- executed by both of them. A preliminary decree was passed with the consent of the defendants on 7-12-1949 with six months' time for payment.
An application for the passing of a final decree for foreclosure was then made on 8-7-1950 and notices were issued to the two judgment-debtors Nathu Lal and Munnu Lal. Nathu Lal was served personally but the summons for Munnu Lal was presumably taken by Nathu Lal, Nobody turned up on the date of the hearing and a final decree for foreclosure was passed on 2-9-1950.
2. Munnu Lal made an application on 31-10-1950 for the setting aside of the final decree on the ground that he had no notice of the passing of final decree which was ex parte against him. The application made by Munnu Lal was, however, dismissed by the learned Munsif of Hardoi on the ground that Munnu Lal and Nathu Lal had lost their interest in the property on account of the sale deed executed by them on 25-10-1950 and as such they had no right to maintain the application under Order 9 Rule 13, C. P. C.
The learned Munsif also held that a notice of an application for a final decree was not necessary. Munnu Lal then went up in appeal and the appellate court came to the conclusion that a notice was necessary and as the question as to whether a notice was served on Munnu Lal or not or whether he had knowledge of the application for the passing of a final decree had not been decided by the learned Munsif he ordered the case to go back to the Munsif for a finding on that point. Baljit Singh and Hanuman Prasad have now come up in appeal against this order of remand.
The only point which arises for determination in this appeal is whether a notice of an application for the passing of a final decree for foreclosure was necessary. There is no express provision in Order 34 Rule 3, C. P. C. for the issue of a notice to the defendant and it has been urged that no notice was therefore necessary in this case.
The view taken by the various High Courts in their pronouncements is not uniform but before the reported cases on this point are examined it is necessary to indicate the change made in the wording of Order 34 Rule 3, C. P. C., in 1929. Before the amendment which was made by the Transfer of Property (amendment) Supplementary Act, 1929, the relevant part of Order 34, Rule 3, stood as follows:
'Where such payment is not so made, the Court shall, on application made in that behalf by the plaintiff, pass a decree that the defendant and all persons claiming through or under him be debarred from all right to redeem the mortgaged property and also if necessary, ordering the defendant to put the plaintiff in possession of the property;
Provided that the Court may, upon good cause shown and upon such terms (if any) as it thinks fit, from time to time postpone the day fixed for such payment.'
Order 34 Rule 3 stood as follows after the amendment in 1929:
'Where, before a final decree debarring the defendant from all right to redeem the mortgaged property has been passed the defendant makes payment into Court of all amounts due from him under Sub-rule (1) of Rule 2, the Court shall, on application made by the defendant in this behalf pass a final decree.'
It would appear from the wording of Order 34 Rule 3 as it stood before the amendment made in 1929, that a judgment-debtor was not entitled to pay the decretal amount after the expiry of the period granted for the payment. No doubt he had a right to apply for enlargement of time but in either case he knew the date by which he had to make the payment in order to save his property.
The view taken by the courts before the amendment, was, that no notice was necessary as it would not make any difference if the judgment-debtor was informed that he had not made the payment when the judgment-debtor knew whether he had or had not made the payment before the date fixed for the payment.
3. After the amendment made in Order 34 Rule 3 in 1929 the judgment-debtor was not stopped from paying the decretal amount and saving his property till the final decree was passed even though the time originally granted for payment of the money had expired. This change is significant inasmuch as the judgment-detbor's right to save the property by paying up the decretal amount was not lost till the final decree was actually passed and he could even though he had not made payment in proper time pay up the decretal amount before the actual passing of the final decree and a notice would therefore be necessary.
4. The learned counsel for the appellants has cited Sureiidra Kumar Singh v. Mukund Lal Sahu AIR 1949 Pat 68. It is a Single Judge case and reliance has been placed in this case on an earlier unreported decision of that court. No grounds have been given for holding that a notice was not necessary and the learned Judge who decided the case felt bound by the earlier decision. The ear-lier decision is unreported and the reasons for the decision are not available.
5. Reliance has also been placed on two cases of this Court in Mahadeo Pandey v. Somnath Panrley : AIR1926All757 and Mt. Fahiman v. Awadh Behari Lal : AIR1929All279 . Both of these cases were decided before the amendment of 1929 and it is therefore not necessary to refer to these cases.
6. The learned counsel for the respondents has, on the other hand, cited three recent cases in which the point as to whether a notice was necessary has been considered. In Tikaram Namaji v. Tarachand Gujoba AIR 1954 Nag 135 which is a Division Bench case it was held that although there was not specific provision in the Code of Civil Procedure for issue of notice to the defendants of an application for making a preliminary decree, final, a notice was necessary. Reference was also made in this reported case to various other provisions of the Code of Civil Procedure in which no provision for issue of v. notice has been made yet notices have to be issued. The absence of a specific provision for the issue of a notice does not therefore indicate that no notice was necessary. If the matters are such that a notice to the other party should be given, a notice should be deemed to be necessary.
7. There are two cases of the Calcutta High Court also which are Bench Cases in Braja Kishore De v. Gour Chandra Roy ILR (X946) 1Cal 333 and Mahadeo Agarwalla v. Joy Narayan Senehiram, Firm, ILR (1949) 1 Gal 113. In both' of these cases it has been held that an application under Order 9 Rule 13 may be made when an ex parte final decree for sale or foreclosure is passed. It has also been held that although there is no specific provision for giving a notice to the defendant of an application for the passing of a final decree for sale it is just and proper, that such notice should be given.
It would thus appear that although no specific provision tor the issue of a notice has been made in the Code of Civil Procedure under Order 34, Rule 3 a notice should be issued to the judgment-debtors so that they could know that there was an application for final decree and might exercise their right of paying up the decretal amount before the final decree is passed. I agree, if I may say so with respect, with the views of the Calcutta and Nagpur High Courts referred to above and am of opinion that a notice was necessary. The view taken by the lower appellate Court on this point appears therefore to be correct.
8. Another point pressed on behalf of the appellants was that the respondents Munnu Lal and also Nathu Lal had sold the property to one Sada-nand on the 25-10-1950 and as such they had lost their right to maintain an application for the setting aside of the ex parte decree. The final decree in this case was passed on the 2-9-1950 and if this was a good decree the foreclosure became final and the judgment-debtors had lost all rights in the property ; they could not therefore transfer any rights to Sadanand on 25-10-1950. If, on the other hand, the final decree passed ex parte could be set aside, the rights of Munnu Lal and Nathu Lal could be revived and they could also make a sale of the property.
They have made a sale of the property on 25-10-1950. They were bound to make good their title to the vendee and under these circumstances an application could be maintained for the setting aside of the ex parte decree. It would be difficult therefore to say that Munnu Lal had no right left in him to make an application for the setting aside of ex parte decree under Order 9, Rule 13 because of this transfer deed dated 25-10-1950.
9. The last submission of the appellants was that the decree against Nathu Lal was a good decree inasmuch as he had been served with a notice before the decree was passed and the decree against Nathu Lal could not be set aside. Order 9 Rule 13 provides for the setting aside of a decree against those defendants also who do not make an application for the setting aside of the decree if it appears that the decree is one and indivisible and cannot be set aside against one particular defendant.
I wish to express no opinion as to whether Munnu Lal had or had not been served or whether Munnu Lal had knowledge of the application for the passing of a final decree as that will be the subject of decision by the trial Court as a result of the order of remand,
10. No other point has been pressed in arguments.
11. As a result, the appeal fails and is dismissed. The costs in this appeal shall be costs in the cause. The stay order is discharged.