P. B. MUKHERJI, J.

( 1 ) THIS is an application for final decree in a Mortgage Suit under Section 34 (1) (a) (ii), Bengal Money Lenders Act.

( 2 ) THE facts are simple.

( 3 ) ON 22-2-1951, the usual preliminary mortgage decree was passed in this suit declaring the applicant as the first mortgagee under the two Indentures of Mortgage dated 22-12-1941 and 22-12-1945 and the amounts due to the applicant for principal and interest up to the date of that decree were Rs. 58,450/-and Rs. 71,438-14-3 respectively on the two mortgages. The decree provided that the amounts due to the applicant for principal and interest and also costs awarded thereunder should be paid, in four equal annual instalments. It provided that in default of payment the applicant would be at liberty to apply for a final decree for sale. Default having taken place, the mortgagee now applies for the final decree, after having given notice to the mortgagors.

( 4 ) THE only point on behalf of the respondents mortgagors is a short point about the notice mentioned under Section 34 (1) (a) (ii), Bengal Money-lenders Act.

( 5 ) MR. Sarkar appearing on behalf of the respondents argues that the application is not maintainable because the time specified in the notice given under that Section expired before this application was moved in Court. The notice under the Bengal Money-lenders Act appearing as Annexure to the notice of motion and as exhibit referred to in the affidavit of Parswanath Saha affirmed on 21-5-1952, is dated 17-5-1952. That notice specified that an application would be made by the plaintiff 'within 15 days' to the Court for final decree under Sub-rule 1 of Rule 4 of Order 34, Civil P. C. The notice of motion was taken out on 22-5-1952 notifying that an application would be made on 2-6-1952. Although the date for which the notice of motion was returnable was within the time specified in the notice under the Statute the application was not noted as made on that date. On 2-6-1952 when the application appeared on the motion list it was by consent of the parties adjourned for affidavits till 13-6-1952. Mr. Sarkar's contention is that such an application must be made within the time specified in the notice given under the Bengal Moneylenders Act and as it was not actually made within that time this Court cannot make an order for final decree. In aid of his argument he has relied on the well known decision of this Court in -- 'sreechand Daga v. Sohanlal Daga', AIR 1943 Cal 257 (A) and -- 'debendra Nath v. Satya Bala Dasi,. Further reliance has been placed on the decision of S. R. Das J. in -- 'rangalal Man-dal v. Narendra Nath Ghosh', AIR 1944 Cal 414 (C ). In that decision S. R. Das J. holds that under Section 34 (l) (a) (ii), Bengal Money-lenders Act, the giving of a notice in the form prescribed by the Rules made under the said Act is a condition precedent for the plaintiff's right to apply for a final decree and the provision relating thereto should be strictly complied with. In that case this statutory notice was given not by all the plaintiffs but by only one amongst them and the notice also suffered from the defect that the amount specified there for which default was alleged was not correct. It was held that such a notice was bad and the plaintiff was not entitled upon such notice to apply for a final decree. This case, however, is not an authority for the point which I am now asked to decide here on the question that if the notice specifies that application will be made within 15 days then unless the application is made to the Court within such 15 days the decree-holders will lose their right to apply for the final decree on the strength of such notice,

( 6 ) THE case, however, which helps Mr. Sarkar on the point, js an unreported decision of Gentle J. in Suit No. 2077 of 1939 -- 'sm. Sovana Sundari Pal v. Satyendra Nath Chat-terjee (D) and delivered on 14-3-1945. There Gentle J. upon the same point observed :"the prescribed notice is found in Form

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