ABHOY CHURN GAIN Vs. NABA KUMAR DUTT

JUDGEMENT

(1.) We are invited in this Rule to set aside an order of refusal of the Court below to review an order absolute for foreclosure of a mortgage made by it on the 2 December, 1908 on the basis of a decree nisi dated the 2 May, 1905. The application for order absolute was presented on the 16 June 1908, and the decree-holder asked thereby for an order absolute for sale of the mortgaged properties. Notices of the application were served on the judgment- debtors, one of whom alone entered appearance. At that stage, the decree-holder appears to have discovered that he was entitled to an order absolute for foreclosure and not for sale. Thereupon on the 30 November 1908, he applied for leave to amend his application, this was allowed. The case was taken up for final disposal on the 2nd December. The judgment- debtor, Khiradhar Koyal, who alone had entered appearance, asked for an extension of time, but his prayer was refused on the ground that the Court could not and should not extend the time prescribed by the decree of this Court for payment of the mortgage-debt. The order absolute was then drawn up, but by some oversight it stated merely that the judgment-debtor Khiradhar Kayal was debarred absolutely of all right to redeem the property mortgaged to Kedar Nath Eaut; the order made no mention of its effect upon the rights of the other judgment-debtors, and it has been suggested before us that probably the Court overlooked at that stage that there were other judgment-debtors affected by the order, whatever may be the true explanation of the defective form of the order. On the 2 January, 1909, one of these judgment-debtors Abhoy Churn Gain, the petitioner before us, applied to the Court below for review of the order absolute on the ground that no notice had been served upon him, that consequently the order absolute should be discharged and he should be given an opportunity to redeem the property. This application was dismissed on the 26 July 1909. The Court below held that notice of the original application was served upon the petitioner and that as the notice did not specifically state that the application was for an order absolute for sale, there was no reason to suppose that the judgment-debtor had been misled. We are now invited to set aside this order of the 26 July 1909.

(2.) It has been argued in support of the Rule, that the amendment of the application for order absolute ought not to have been granted ex parte without the issue of a fresh notice upon the absent judgment-debtors; on the other hand, it has been contented by the learned Vakil who appears to show cause, that an order absolute may be made by a Court without the issue of any notice at all upon the judgment-debtors and that in this view it is not necessary to serve a notice upon them of any application for amendment of the original application for order absolute. In our opinion, fresh notices ought to have been issued upon the absent judgment- debtors of the application for amendment, the effect of which was to vary materially the relief which was sought by the decree-holder in his original application. It may be conceded that if an application for amendment of this nature is granted without notice to the party affected thereby, the order is not void in the sense that it is not binding upon him. As was pointed out by this Court in the case of Sadho Misser V/s. Qolab Singh 3 C.W.N. 375, the effect of the grant of such an application for amendment, is not necessarily to vitiate the order made so as to entitle the party affected thereby to ignore it or to have it vacated in a separate suit. But it was explained at the same time that the party affected is entitled to have the order dischargad in an appropriate proceeding, namely, by an application under Section 108 to set aside the order, or an application for review of judgment or an appeal under Section 540 of the Code. That an order of this description ought not to be made without notice to the party who is likely to be prejudiced thereby, is obvious from the decision, in Bibi Tasliman V/s. Harihar Mahto 32 C. 253 (F.B.); Sudevi Devi S.M. V/s. Sovaram Agarwalla 10 C.W.N. 306 and Abdul Sattar V/s. Satya Bhushan Das 35 C. 767. In these cases, orders made ex parte under Secs.87, 89 or 90 of the Transfer of Property Act were set aside in the exercise of the inherent powers of the Court, on the ground that such orders ought not to have been made ex parte without notice to the party affected thereby. The case before us is really much stronger, because when an application is made for order absolute for foreclosure, the Court is expressly authorized to extend the time for payment; it is, therefore, desirable that the party against whom such an order is sought should be apprised of the application, so as to enable him to obtain an order for enlargement of time if there are good grounds. In Our opinion, the order of the 2nd December 1908 ought not to have been made by the Court below without notice to the absent judgment-debtors that the application for order absolute for sale had been converted into an application for order absolute for foreclosure.

(3.) The result, therefore, is that this Rule is made absolute and order of the 26 July 1909 dismissing the application for review of judgment is set aside. We make the order which ought to have been made by the Court below, namely, "we grant the application for review and set aside the order of the 2 December, 1908 only in so far as the present petitioner is concerned. The order will stand in so far as it affects persons" who have not sought to assail it. There will be no order, as to costs in this Court.