JUDGMENT
Sulaiman, J.
1. First Appeal No. 130 and First Appeal No. 131 of 1924 are connected and raise the same question of law. Both are appeals from final decrees in two suits for sale on mortgages in which the preliminary decrees were affirmed by the High Court in May 1921. Six months time was fixed for payment in both cases. On the 7th of August 1923 two applications for the preparation of final decrees in the two cases were made. The office, however, reported that the applications did not contain a complete list of the mortgaged property and that the calculation of the amount of interest due appeared to be wrong. Time was allowed to the decree-holders to cure this defect twice; ultimately the application was dismissed on the 5th September, 1923 in the absence of the applicants and their counsel. Subsequently within thirty days of this dismissal the decree-holders filed fresh applications for the preparation of final decrees. In these applications they did not refer to the previous dismissal and these applications did not in express language purport to be applications for setting aside the former dismissal but were fresh applications for the preparation of final decrees. On notice being issued to the judgment-debtors objections were filed on their behalf to the effect that these applications were barred by time and that they were not maintainable. The learned Subordinate Judge has disallowed these objections and ordered that the final decrees be prepared. Hence these appeals.
2. The plea of limitation has not been pressed before us and we are unable to see how it could be seriously urged when the present applications ware within three years of the High Court’s decree and within thirty days of the previous dismissal.
3. The learned Subordinate Judge in his order has thought that the previous dismissal was for default of appearance on behalf of the parties. If he meant thereby that both the decree-holders and the judgment-debtors were absent then he was not quite accurate for, as we have pointed out above, the applications were dismissed for want of compliance with the office report and before any notice had been issued to the judgment-debtors. No date had been fixed for the appearance of the judgment-debtors and they had in fact not been summoned to appear at all. The dismissal was in fact due only to the default of appearance of the decree-holders and their counsel.
4. It is obvious that in a case of this kind the principle of constructive res judicata cannot apply because the matter was never adjudicated upon between the parties, the judgment-debtors not having been summoned and the applications not having been dismissed on merits.
5. The learned advocate for the appellants however, contends that the second application was not maintainable in view of the provisions of Order 9 of the Code of Civil Procedure. His contention is that under the new Code a mortgage suit continues to be pending till it is completely disposed of by the preparation for a final decree and that whenever an application for a final decree is dismissed for any reason whatsoever, the suit itself is dismissed, and the remedy of the plaintiff is either to bring a fresh suit or to apply for the setting aside of that dismissal.
6. If we were to assume that Order 9, Rule 3 was applicable to these cases and that the provisions of that rule (which in express language apply to suits only) applied to these cases then we would have to hold that the word “application” should be substituted for the word “suit” in Rule 3, and similarly in Rule 4, which would entitle the decree-holders to make a fresh application. This was the view expressed by a Bench of this Court in the case of Ahmad Khan v. Gaura [1918] 16 A.L.J. 143.
7. We, however, think that the provisions of Order 9, Rule 3 are not at all applicable to the facts of these cases. Rule 1, of the order contemplates proceedings following upon the fixing of a date for the appearance of the defendant, Rule 3 expressly states that where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed, It is therefore, apparent that unless a date has been fixed for the appearance of the defendant and neither party appears when the suit is called on for hearing on that date, Rule 3 would not apply. In the present case the application was dismissed without any date having been fixed and the judgment-debtors could not be expected to appear nor could the “suit” be said to have been called on for hearing.
8. Further, in view of the pronouncement of their Lordships of the Privy Council in the case of Lachmi Narain Marwary v. Balmakund Marwary A.I.R. 1924 P.C. 198, we are bound to hold that the provisions of the said rule are not applicable to a case where a preliminary decree has already been passed. In the case aforementioned a preliminary decree for partition had been passed and the case had gone back to the trial Court for the completion of the partition. The application for final decree was dismissed after several adjournments and yet their Lordships, held that the analogous provisions of Order 17, Rule 2 were not applicable when a preliminary decree had been passed and the whole suit could not be dismissed. Their Lordships referred to Order 9, Rule 3 also and pointed out that after a decree had once been made in a suit the suit could not be dismissed unless that decree was reversed or varied on appeal. The parties on the making of the decree acquired rights or incurred liabilities which were fixed and they were entitled to apply to have it enforced. Similarly Rule 8 cannot apply because the defendants did not appeal.
9. We might add that the present applications were made within thirty days of the dismissal of the previous applications and although they do not expressly purport to be applications forgetting aside the dismissal they could be treated as such if necessary. We have already remarked that in our opinion it is open to the decree-holders to make fresh applications so long as limitation has not expired and the applications are not barred by the principle of res judicata. We may also point out that the report of the office was based on a misconception inasmuch as under Order 34, Rule 5, it was not incumbent on the mortgagee decree-holder to furnish a fresh list of the mortgaged property nor could the applications be dismissed on the mere ground that the amount of interest calculated was wrong. The Court could in order to correct its own mistake, revoke the order of dismissal and pass a final decree upon application made by the decree-holder even though such application, regarded as a fresh application in execution or as an application for review, was beyond time: Jodha Singh v. Gokaran Das Pande A.I.R. 1925 All. 622. Looked at from any point of view, these applications were competent. The appeals are accordingly dismissed with costs in both Courts.
