CHANDRA SHEKHAR Vs. AMIR BEGAM

JUDGEMENT

(1.) First Appeal No. 130 and First Appeal No. 131 of 1924 are connected and raise the same question of law. Both are appeals from final decrees in two suits for sale on mortgages in which the preliminary decrees were affirmed by the High Court in May 1921. Six months time was fixed for payment in both cases. On the 7 of August 1923 two applications for the preparation of final decrees in the two cases were made. The office, however, reported that the applications did not contain a complete list of the mortgaged property and that the calculation of the amount of interest due appeared to be wrong. Time was allowed to the decree-holders to cure this defect twice; ultimately the application was dismissed on the 5th September, 1923 in the absence of the applicants and their counsel. Subsequently within thirty days of this dismissal the decree-holders filed fresh applications for the preparation of final decrees. In these applications they did not refer to the previous dismissal and these applications did not in express language purport to be applications for setting aside the former dismissal but were fresh applications for the preparation of final decrees. On notice being issued to the judgment- debtors objections were filed on their behalf to the effect that these applications were barred by time and that they were not maintainable. The learned Subordinate Judge has disallowed these objections and ordered that the final decrees be prepared. Hence these appeals.

(2.) The plea of limitation has not been pressed before us and we are unable to see how it could be seriously urged when the present applications ware within three years of the High Court's decree and within thirty days of the previous dismissal.

(3.) The learned Subordinate Judge in his order has thought that the previous dismissal was for default of appearance on behalf of the parties. If he meant thereby that both the decree-holders and the judgment-debtors were absent then he was not quite accurate for, as we have pointed out above, the applications were dismissed for want of compliance with the office report and before any notice had been issued to the judgment-debtors. No date had been fixed for the appearance of the judgment-debtors and they had in fact not been summoned to appear at all. The dismissal was in fact due only to the default of appearance of the decree-holders and their counsel.