Rampini and Pratt, JJ.
1. This is an appeal against an appellate order. The facts are that a decree for foreclosure was passed in favour of the respondent on the 7th June 1898. It was made absolute on the 22nd December 1898. Possession was taken on the 30th January 1899. On the 8th February 1899 the defendant applied for a rehearing under Section 108, Civil Procedure Code. The Munsif refused her application. She appealed to the Subordinate Judge, who remanded the case for re-enquiry under Section 562, Civil Procedure Code. The Munsif then adhered to his former decision. The Subordinate Judge on a further appeal to him being made passed an order, allowing the defendant to pay a sum of Rs. 380, and on her doing so, directed her restoration to possession of the land. The plaintiff prefers this second appeal. A preliminary objection is raised that no second appeal lies under the provisions of Section 588. This objection would seem to be valid. The learned Advocate-General contends for the appellant that a second appeal lies because the order of the Munsif was an order passed in execution. This contention, however, cannot prevail in face of the decision in Akihnnissa Bibee v. Roop Lal Dass (1897) I. L. R. 25 Calc. 133. We therefore dismiss the appeal, but without costs.
2. The learned Advocate-General on our intimating our intention of taking this course presented an application under Section 622, Civil Procedure Code, and prayed that we should deal with the matter under that section. We think that in the interests of justice we should do so.
3. The Subordinate Judge held that the respondent could not impugn the order making the decree for foreclosure absolute on the ground that no notice had been served upon her before it was passed, but was of opinion that the plaintiff had given the defendant some assurance that he would deal leniently with her, and therefore the defendant should be allowed another opportunity of paying off the debt due by her notwithstanding that the decree for foreclosure had been made abslute.
4. It is clear, we think, that the Subordinate Judge was right in holding that the order absolute was not invalid by Reason of no notice having been given to the defendant before it was made. The defendant was present when the decree for foreclosure was passed. She knew she would be foreclosed, if she did not pay within six months. No further notice to her was necessary, and Section 87 of the Transfer of Property Act does not require that any such further notice should be given before the order absolute is made.
5. We are of opinion that in these circumstances the Subordinate Judge was wrong in allowing the defendant to pay off the debt after the order absolute had been made and in directing her to be restored to possession. The Subordinate Judge has held that the plaintiff gave the defendant some assurance, but he does not definitely find what assurance the plaintiff gave the defendant, nor that it was of such a nature as to make his conduct fraudulent in applying for the order for foreclosure being made absolute. The Subordinate Judge seems to have allowed his feelings of sympathy with the defendant to influence him. We do not think this was right, and we can see no reason which can justify his setting aside the order absolute and allowing the defendant to pay off the debt long after the time for doing so had elapsed.
6. We must therefore, under Section 622, Civil Procedure Code, set aside the order of the Subordinate Judge in the case and restore that of the Munsif, which we accordingly do. The applicant is entitled to costs.