1. This appeal has been preferred by a judgment-debtor from an order refusing to set aside a final decree in a mortgage suit for sale, which was passed ex parte and without notice to him. A preliminary decree was passed giving the judgment-debtor six months' period of grace expiring on 13th November 1924. He preferred an appeal to the High Court from that decree. The High Court on 30th March 1926 sot aside the decree of the trial Court and sent the case back to the trial Court with the direction that the plaintiff was to be examined in Court and on his evidence as also on the other evidence the Court would come to a decision on the question as to whether there was an agreement between him and the judgment-debtor as regards a set-off, and if such agreement was proved, the Court would allow a deduction from the amount decreed but if no such agreement was proved then the decree as passed would stand. On remand the trial Court on 10th August 1927, passed an order that the agreement was not established, and that under the terms of the High Court's order a fresh preliminary decree should not be prepared' nor any fresh period of grace should be allowed but the preliminary decree as originally made would stand. Thereafter on 30th August 1927 the trial Court made a final decree for sale, acting on an application which the plaintiff had filed so-far back as 13th November 1924. This decree was made without notice to then judgment-debtor and in his absence. The judgment-debtor then made an application under O. 9, Rule 13, Order 47, Rules 1 and 2 and Section 151, Civil P. C, for vacating the said final decree. This application being refused the present appeal has been preferred.
2. The grounds upon which the Courts below have refused the judgment-debtor's application are that under Order 34, Rule 5 Civil P.C., no notice on the judgment debtor is necessary, and that even if the judgment-debtor had such notice, he-could not have urged anything substantial, to resist the passing of the final decree.
3. It is contended before us on behalf of' the appellant that though notice is not absolutely necessary yet if in this case he had the notice he would have shown that no final decree could have been made until a fresh period of grace was allowed and was over. It is urged that even if the High Court had dismissed the appeal which the appellant had preferred from the preliminary decree, the dismissal would have the effect of making a fresh preliminary decree, as was held by the Judicial Committee in the case of Fitzholmes v. Bank of Upper India Ltd. . and that the order of remand, which the High Court did in fact make ought not to place the appellant in a worse position.
4. Now it may be conceded that in view of the decision of the Judicial Committees cited above the appellant is right in his contention that the effect of the order of remand passed by the High Court, notwithstanding the peculiar wording of it, was to bring into existence a fresh preliminary decree after the Court below had decided the question of the agreement and that decree should not have been enforced till six months had elapsed thereafter. But even then the appellant ought not to succeed and for the following reasons:
5. In the first place there is no foundation for appellant's contention that if he had notice he could have shown that it was not yet time for the final decree to be passed and that he was entitled to a fresh period of grace: he had urged that contention before and the Subordinate Judge had overruled it in his presence by the order of 10th August 1927. In the Full Bench decision of this Court in the case of Bibi Talsiman v. Harihar Mahto  32 Cal 253 it was held that if an order absolute has been made under Section 87 or S. 89, T.P. Act, without notice to the mortgagor, the Court has an inherent power to deal with an application to set aside the order made ex parte and can set it aside upon a proper case being substantiated. Here however the ground on which the final decree is assailed was a ground that the appellant had urged before the Subordinate Judge but did not prevail. It can hardly be said that the error, if any, could be avoided if a notice had been given to the appellant. In such circumstances, if the final decree was wrongly passed, the appellant's remedy lay in an appeal and not by an application of the present nature.
6. Nextly, it is somewhat strange that the appellant should urge this objection, because if we interfere we shall have to direct a fresh preliminary decree with a further period of grace to be passed now, the effect of which will be to saddle the appellant with a much heavier liability as compound interest at the stipulated rate will run till the end of that period, in the place of interest at 6 per cent per per annum which has been running, since 13th November 1924.
7. Lastly, there is no reason whatever to suppose that the appellant has in any way been injured by the omission to frame a fresh preliminary decree with a further period of grace, because even now it does not appear that he is in a position to redeem. Moreover, it would be still open to him to avert the sale by making a deposit, and that of a much smaller amount than otherwise he would have to pay.
8. We accordingly dismiss the appeal with costs; hearing-fee three gold mohurs.