BALJIT SINGH Vs. MUNNU LAL

JUDGEMENT

(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:

(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.