MUCHI DOLA BEHERA Vs. JUJISTI JANNI

JUDGEMENT

(1.) The appellants are the decree-holders in a mortgage suit. They obtained a preliminary decree for Rs. 15,000 odd on 16 March 1925. Time for redemption was allowed up to the 16 June. The debt was not redeemed and a first application for passing a final decree was made on 10 February 1927. The decree-holders failed to take certain steps in connexion with the issue of notice and the application was dismissed on 3 October 1927. A second application, the one out of which this appeal arises, was filed on 6 July 1928. This was more than three years after the date of redemption. Taking into account the effect of the Court's vacation, the latest date on which it could have been filed was the 2nd July. It was accordingly four days late. On an application being filed under Section 5, Lim. Act, to excuse the delay the lower Court has found that the delay of one of those four days has not been satisfactorily accounted for. It also appeared doubtful -whether Section 5 would apply to such a case. The application was therefore dismissed as time-barred.

(2.) In this appeal from that order the appellants learned advocate instead of pursuing the line of argument used in the Court below proposes to surmount the difficulty by the application of a different principle. He contends that the first application was wrongly dismissed, and it should therefore be regarded as still subsisting at the time when the second application was made, so that that latter application may be regarded as merely, a continuation of it. The first application was dismissed after the great majority of the defendants had been served and after the Court had called upon the decree-holders to propose a fresh guardian for defendants 28 and 29, the existing guardian being said to be dead, and to state if it was true that defendant 30 was dead and if so what was the date of his death. This order requiring these steps to be taken was passed on 20 September 1927. When the case was next taken up on 1 October it was noted that the petitioner's vakil was absent and it was adjourned until the 3rd. On the 3 again the vakil was absent as was also the decree-holders and the application was dismissed in toto.

(3.) Now it is contended that all this procedure of serving the defendants and of requiring the decree-holders to take certain steps to that end was unnecessary because the Court does not contemplate the issue of notice before a final decree is passed in a mortgage suit. Order 34, Rule 5(3), Civil P.C. as it stands at present, provides that where payment of the amount due under the preliminary decree has not been made within the time specified, the Court shall on application and after notice to all the parties pass a final decree. But the amendment requiring notice to all parties was brought into force so far as this Presidency is concerned only on 20th August 1931, and before that time so far as the terms of this rule are concerned all that was expressly required was that payment should not have been made into Court within the time given and that an application should have been made to pass a final decree. Prom this it has been argued that the Court was wrong in requiring the decree-holders to take out notice before passing such a decree.