MODI, J.—This is a civil miscellaneous appeal by defendants Debi Prasad and Smt. Savitri Devi, husband and wife, against an order of the Senior Civil Judge, Jaipur City dated the 12th July, 1960 refusing to set aside a final decree passed against them in a suit for sale. Appellant Debi Prasad having died during the pendency of this appeal, apart from Smt. Savitri Devi, his widow, who was already on record, his son Bhagwan Das and his daughter Smt. Bhagwani Bai have been impleaded as respondents in this appeal.

2. The material facts leading up to this appeal are shortly these: A preliminary decree was passed on 8th March, 1957 against the defendants in a suit brought against them by the respondents. A final decree was then passed on the 4th March, 1958. The latter decree was passed in the absence of the defendants. An application to set aside this decree was made by the defendants in the trial Court on the 15th March, 1960. The case of the defendants was that no notice of the final decree had been served on them and that they had come to know of it as late as the 16th February, 1960, and consequently their application for setting aside the final decree on the 15th March, 1960 was within time. This application was opposed on behalf of the respondents though it is unfortunate that the reply filed by them is not available on record. Learned counsel for the appellant has, however, made it available to us, and that is accepted as correct by learned counsel for the respondents, and we have, therefore, placed it on the file of the trial court. As it happened, the learned trial Judge entertained the view that the first question to decide in the matter before him was whether it was at all necessary for the Court to give a notice of the passing of the final decree to the appellants and, therefore, he did not frame any issue as respects the contentions raised on behalf of the appellants and controverted by the respondents or try the same. He eventually came to the conclusion that no such notice was necessary, and, in that view of the matter, dismissed the application. Hence the present appeal.

3. The first question which in these circumstances emerges for determination in this appeal is whether the view entertained by the trial Court that it was not at all necessary for it to have given any notice of the passing of the final decree to the defendants is well-founded. A number of authorities have been brought to our notice by learned counsel on both sides supporting their respective points of view. Reliance is placed on behalf of the appellant on Mt. Fahiman Vs. Awadh [Behari Lal (l); Sri Maruti Swamiar Vs. A. Subramania Ayyar(2); Tikaram Namaji Vs. Tarachand Gujoba(3) and Suresh Chandra Banerjee Vs. United Bank of India Ltd.(4), while on the other side support is sought from Babooji Vs. Ramgopal(5); Mahadeo Pandey vs. Somnath Pandey (6); Surendra Kumar Singh vs. Mukandlal(7) and Krishna Behari Lall Vs. Kedar Nath Ojha (8).

4. We consider it unnecessary to deal with these cases one by one, as, on first principles, we are inclined to think that the view generally taken in the cases relied on by learned counsel for the appellant is the better one. It is one of the fundamental principles of judicial procedure that no order should be passed to the prejudice of a party without any opportunity of hearing being afforded to him. The view, therefore, that before a court passes a final decree on the basis of a preliminary decree earlier passed by it, it should give a notice to the defendants before the final decree is passed best accords with this view. We should also like in this connection to invite attention to the form of the final decree sale prescribed in Appendix D thereof. The relevant portion whereof reads as follows:—

"Upon reading the preliminary decree passed in this suit on the .... day of... and further others (if any) dated the... day of............. and the application of the plaintiff dated the.........day of....... for a final decree a

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