The default clause in an instalment mortgage decree is for the benefit of the decree holder and it is for him to decide whether or not he would take advantage of a default made by the judgment debtor.

( 1 ) THE defendants have preferred this appeal against the final decree passed against them by the learned Subordinate Judge, 8th Court, Alipore in a mortgage suit brought by the plaintiff respondent. The principal point in this appeal is whether or not the mortgagee plaintiffs application in the trial court for drawing up the said final decree was barred by limitation.

( 2 ) THE respondent, Ranendra N. Saha had instituted the said Title Suit No. 69 of 1972 in the 8th Court of the Subordinate Judge, Alipore against the present appellants and another for recovery of money lent and advanced on mortgage of Premises No. 85b, Raja Rajendra Lal Mitra Road, P. S. Beliaghata. After service of summons, the defendants had appeared but did not file any written statement. On 2nd May, 1973 the said plaintiff and the defendants 1 to 4 jointly filed a petition in the trial court stating that through the intervention of well-wishers and common friends, the suit had been compromised and settled between the parties on the terms and conditions set out in the said petition.

( 3 ) THE parties agreed in the following manner:--'there will be a preliminary Mortgage Decree against the defendants 1 to 4 for the sum of Rs. 38,000/- with interest on the principal sum of Rs. 25,000/- at the rate of 6 per cent per annum from 27th Sept. , 1972 being the date of filing of this suit until realisation and costs- (b) If however the defendants Nos. 1 to 4 pay to the plaintiff the sum of Rs. 30,000/-in the manner following that is to say- (1) Rs. 10,000/- on or before the 30th day of Dec. . 1973, (2) the sum of Rs. 10,000/- on or before the 30th day of Dec. , 1974, (3) the sum of Rs. 10,000/- on or before the 30th day of Dec. , 1975 the plaintiff shall accept the same in full satisfaction of his entire claim on account of the principal interest and costs under this Decree. (c) In case of default of payment of any one of the aforesaid instalments within the time specified in that behalf of the preceding clause, the entire amount then due under this decree shall become at once due and payable and the plaintiff shall be entitled to forthwith apply for a Final Decree for sale of the mortgaged property. "

( 4 ) ON 2nd April, 1973, the learned Subordinate Judge ordered that the said suit be decreed on compromise in preliminary form in terms of the said petition of compromise which would form part of the decree. The preliminary decree in the said suit was accordingly drawn up.

( 5 ) ADMITTEDLY, the defendants did not pay any of the instalments granted to them under the said compromise preliminary mortgage decree.

( 6 ) ON 24th Nov. , 1978, a learned advocate on behalf of the plaintiff issued notice to the defendants under sub-clause (ii) of Cl. (a) of Section 34 of the Bengal _ Money-Lenders Act, 10 of 1940, stating that an application will be made by the plaintiff to the trial Court for drawing up the final decree in the said suit under sub-clause (ii) of Clause (c) of sub-rule (1) of Rule 2 of Order XXXIV of the Civil P. C. for sale of the property in suit and also for realising the decretal dues with interest and costs. Thereafter, the plaintiff, Ramendra Nath Saha, filed a petition in the 8th Court of the Subordinate Judge, Alipore for making the preliminary mortgage decree in the said suit final. The defendants 3 and 4 contested, inter alia, on the ground thai the said petition of the plaintiff for making the mortgage decree final was barred by limitation. The leaned Subordinate Judge, 8th Court, Alipore by hid order No. 28 dated 19th Mar. , 1980 overruled 'the said objections and directed that the preliminary mortgage decree passed in the suit be made final on contest with costs. The plaintiff-decree-holder was given liberty to put up the mortgaged property for sale for realisation of the decretal sum including costs of the proceeding. Being aggrieved thereby, the defendants have preferred the present appeal.

( 7 ) THE aforesaid pet