(1.) The facts of this case have been sufficiently set out by the learned District Munsif of Udamalpet. There was a preliminary decree passed in a mortgage suit and an application I. A. No. 777 of 1925, was put in by the decree-holder for a final decree. Upon this the Court ordered notice to the judgment-debtor. On several occasions notices were issued and a number of them served, but eventually when an order was passed for substituted service to be applied for against defendant 2 and for a guardian to be proposed for defendant l's legal representative the decree-holder defaulted and the application was dismissed. The date of the dismissal was 15 September 1926 and on 3 August 1928 the application out of which this petition arose, I. A. No. 686 of 1928, was filed praying the Court to revoke the previous order on the ground that it was invalid. The learned District Munsif after considering certain rulings has come to the conclusion that there is no necessity to issue notice to the defendants on an application to pass a final decree in a mortgage suit and further that even if on such an application the Court thinks fit to order notice and a decree-holder neglects to take steps the Court has not the power to dismiss the application as it has done in the present case.
(2.) As authority for the former proposition the learned District Munsif has referred to the case short notes in Nemichand Sowar V/s. Kesari Mull A.I.R. 1929 Mad. This case has since been reported as Hasan Chettiar V/s. Rangayyan Chettiar and a perusal of it makes it clear I think that, while it is not obligatory upon a Court to issue notice, it is nevertheless a practice advisable, and the case is certainly not an authority for the position that the Court would be acting ultra vires in adopting such a course. There is in fact a considerable body of case-law in favour of the view that notice should issue, as in the generality of interlocutory applications. The mere circumstance that the Court can dispense with notice and can direct that a final decree be passed under Order 34, Rule 5 (2), Civil P.O., does not therefore invalidate the orders passed by the Court in the present case. Whether or not in directing the issue of notice the learned District Munsif who passed the order did so with his eyes open as to the discretion vested in him to abstain from such a course is no doubt another matter. But I must take it that the action which he took was taken in the exercise of his judicial discretion since he undoubtedly had power to take it.
(3.) The question then arises whether he was equally justified in dismissing the application as a whole upon the failure of the decree-holder to persist in taking out notice until each and every one of the defendants had been served. Reference has been made to Timmaraju V/s. Narasimha Raju A.I.R. 1928 Mad. 522. where it has been held by Jackson, J., in somewhat similar circumstances that, if a Court is going to act under Section 151, Civil P.C., it must satisfy itself and, I presume, record something to satisfy an appellate or revising Court, how the ends of justice or its own process needed to be safeguarded by such a course. In other words, Section 151 will not allow a Court as a matter of course to dismiss an application for default either in taking out notice or in any other manner. I do not think it necessary for me to express either concurrence or disagreement with that decision, because I am not satisfied that recourse must be had to Section 151 in the circumstances which arise here. I am unable to see why by force of Section 141 of the Code the provisions of Order 9 and of Order 17 should not become applicable to a proceeding of the class now under consideration. It has no doubt been held by the Privy Council in Thakur Prasad V/s. Fakirullah [1195] 17 All 106 that this portion of the Code will not apply to proceedings in execution. But whatever else an application of this kind may be, it is certainly not an application in execution and I think it can hardly be contested that it is an integral part of the mortgage suit. No authority has been shown me why the provisions I have mentioned should not be extended to cover a proceeding of this nature, and it seems to me somewhat improper that the Court should possess more unqualified power by resort to Section 151 of the Code in dealing with an application of this kind than it possesses in the case of a suit. If this view be correct, it appears to me that before dismissing the application the Court should have satisfied itself that the terms of Order 9, Rule 5 were complied) with,