The main legal point established in the judgment is the interpretation of the notice requirement before passing a final decree in a mortgage suit and the applicability of Section 5, Lim. Act.

Curgenven, J.

1. The appellants are the decree-holders in a mortgage suit. They obtained a preliminary decree for Rs. 15,000 odd on 16th March 1925. Time for redemption was allowed up to the 16th June. The debt was not redeemed and a first application for passing a final decree was made on 10th February 1927. The decree-holders failed to take certain steps in connexion with the issue of notice and the application was dismissed on 3rd October 1927. A second application, the one out of which this appeal arises, was filed on 6th July 1928. This was more than three years after the date of redemption. Taking into account the effect of the Courts vacation, the latest date on which it could have been filed was the 2nd July. It was accordingly four days late. On an application being filed under Section 5, Lim. Act, to excuse the delay the lower Court has found that the delay of one of those four days has not been satisfactorily accounted for. It also appeared doubtful -whether Section 5 would apply to such a case. The application was therefore dismissed as time-barred.

2. In this appeal from that order the appellants learned advocate instead of pursuing the line of argument used in the Court below proposes to surmount the difficulty by the application of a different principle. He contends that the first application was wrongly dismissed, and it should therefore be regarded as still subsisting at the time when the second application was made, so that that latter application may be regarded as merely, a continuation of it. The first application was dismissed after the great majority of the defendants had been served and after the Court had called upon the decree-holders to propose a fresh guardian for defendants 28 and 29, the existing guardian being said to be dead, and to state if it was true that defendant 30 was dead and if so what was the date of his death. This order requiring these steps to be taken was passed on 20th September 1927. When the case was next taken up on 1st October it was noted that the petitioners vakil was absent and it was adjourned until the 3rd. On the 3rd again the vakil was absent as was also the decree-holders and the application was dismissed in toto.

3. Now it is contended that all this procedure of serving the defendants and of requiring the decree-holders to take certain steps to that end was unnecessary because the Court does not contemplate the issue of notice before a final decree is passed in a mortgage suit. Order 34, Rule 5(3), Civil P.C. as it stands at present, provides that where payment of the amount due under the preliminary decree has not been made within the time specified, the Court shall on application and after notice to all the parties pass a final decree. But the amendment requiring notice to all parties was brought into force so far as this Presidency is concerned only on 20th August 1931, and before that time so far as the terms of this rule are concerned all that was expressly required was that payment should not have been made into Court within the time given and that an application should have been made to pass a final decree. Prom this it has been argued that the Court was wrong in requiring the decree-holders to take out notice before passing such a decree.

4. If we are to regard the terms of the Code, there would appear to be grounds for this view, but we find that there are several decisions which have a contrary effect. An early decision in Bibi Tasliman v. Harlhar Mahto (1905) 32 Cal 253, was passed under the terms of Section 89, T.P. Act, which was then in force, and under that section the judgment-debtor could make his payment either into Court or to the plaintiff. It may be that that decision was affected by that circumstance; and it is unnecessary to rely upon it. There are several cases of this Court which deal with the question whether an ex parte final decree in a mortgage suit can be set aside, decisions which of course imply that the Court would have taken the r