( 1 ) THIS is the mortgagor-judgment-debtors' appeal against an order of the learned Subordinate Judge, Second Court, 24 Parganas, rejecting their application under Order IX, Rule 13 of the Code of Civil Procedure for the setting aside of an ex parte final mortgage decree, passed against them. The suit in question was Title Suit No. 55 of 1950 of the Second Court of the Subordinate Judge, 24 Parganas, in which the respondent Bank, or, rather, its predecessor, was the plaintiff and the appellants were the defendants. The claim was on a mortgage to the tune of over Rs. 75,000/ -.

( 2 ) THE suit was preliminarily decreed on contest on April 26, 1955. Under the said preliminary decree, the period of grace extended up to June 26, 1955. No payment having been made within the aforesaid time allowed, the decree-holder, on October 13, 1955, applied for making the prelimnary mortgage decree final.

( 3 ) ON the aforesaid application, the learned Subordinate Judge, by his first order (No. 96, dated December 16, 1955), directed issue of notice "on filing requisites" by January 6, 1956. Later on, however, by his next order No. 97, dated January 5, 1956, he recalled the above direction for issue of notice and, having recorded in his said order that no notice need be served, he made the final decree, as prayed for by the decree-holder. The decree was "sealed and signed" on February 23, 1956.

( 4 ) THE present appellants, who were the judgment-debtors in the aforesaid final mortgage' decree, applied, on March 21, 1958, under Order IX, Rule 13 of the Code of Civil Procedure for the setting aside of the same. To that application, there was an objection, eventually filed by the decree-holder on May 9, 1958, and the said application came up for hearing before the Court on June 7, 1958. On that day, a preliminary objection was taken to the maintainability of the aforesaid application, presumably, upon the ground that Order IX, Rule 13 of the Code would not apply to such a case and, no notice being necessary to be served, upon the mortgagors judgment-debtors, of an application under Order XXXIV, Rule 5 of the Code for making the preliminary mortgage decree final, there was no case for setting aside the final mortgage decree made as aforesaid, under the said provision (Order IX, Rule 13), even on the admitted position that no notice of the said application was either issued or served upon the mortgagors-judgment-debtors,

( 5 ) THE above preliminary objection appears to have been accepted by the learned trial Judge upon the view that law does not require issue or Service of any notice of the application for making the preliminary decree final and, accordingly, the judgment-debtors could not make out any case under Order IX, Rule 13 of the Code of Civil Procedure, even if their other allegations be correct. As a matter of fact, it appears quite clear that, before the trial court, the parties fought only on the question as to the necessity or otherwise of notice in connection with the application for making the preliminary mortgage decree final. The learned trial Judge, accordingly, because of his aforesaid view of law, rejected the judgment-debtors' application and dismissed the Miscellaneous Case. Against this Order, the present appeal was filed by the judgment-debtors.

( 6 ) ON behalf of the appellants judgment-debtors, Mr. Bakshi drew our attention to two decisions of this Court, reported in Mahadeo Agarwala v. Jay Narayan Senehiram, 53 Cal WN 326 and Braja Kishore De v. Gour Chandra Ray, ILR (1946) 1 Cal 333. Those decisions were also referred to before the learned trial Judge. But they were distinguished by him upon the ground that 53 Cal WN 326 was a case of foreclosure and not for sale like the present and ILR (1946) 1 Cal 333 related to a suit to which the Bengal Money Lenders Act, 1940, applied, in which particular statute, Section 34 expressly provided that, in all cases under the said Act, notice in the prescribed fo