MODI, J. - (1.) 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. 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 ). 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 and 'after hearing the parties and it appearing that the payment directed by the said decree and orders has not been made by the defendant or any person on his behalf or any other person entitled to redeem the mortgage: It is hereby ordered and decreed. . . . . . . . . " Reference may also be made in this connection to Order XLVIII of the Code of Civil Procedure, the 3rd rule of which lays down that the form given in the appendices, with such variation as the circumstances of each case may require, shall be used for the purposes therein mentioned. It clearly seems to us that the form prescribed by the Code in this behalf, therefore, has a statutory force. The principal argument which has been relied on in the cases taking the other view and which has also been stressed before us by learned counsel for the respondents is that Order XXXIV, rule-5 C. P. C. does not specifically provide for the issue of a notice to the defendants. That argument, in our opinion, cannot be considered to be conclusive; and we have no hesitation in saying, at least this much that even if we may not be prepared to go to the length of laying down that the giving of a notice to the defendants before a final decree is passed against them is essential as a matter of strict rule, we do desire our subordinate courts to realise that such a notice must be given as a matter of prudence and that it would always be a sound rule of practice to give it. In the view we take we are, therefore, not prepared to hold that the finding of the trial Court that it was not necessary for it to give any notice to the defendants before the passing of the final decree is not sound, and we accordingly set it aside. The next question that arises is what is the exact order that we should make in the circumstances of this case. As we have already pointed out, the trial Court did not address itself to the two important questions whether the defendants were served as alleged by the respondents with the notice of the passing of final decree and whether their application for setting it aside was within the time prescribed under Art. 164 of the Limitation Act. The trial Court shall frame specific issues on these questions and try them now. In this connection we should like to invite the attention of the trial Court to Order IX, rule 13 C. P. C. which lays down that before a Court can set aside an ex parte decree it must be satisfied that either the summons were not duly served on the defendants or that they were prevented by any sufficient cause from appearing when the suit was called on for hearing, and unless the defendants succeed in satisfying the court upon the one or the other of these two points the Court would have no jurisdiction to set aside the ex parte decree. The correct legal position, therefore, is tha the Court below will have no jurisdiction to set aside ex parte decree unless the defendants do succeed in proving that the notices issued by that Court in connection with the passing of the final decree were not served on them, and that their application for setting aside the ex parte decree was made within 30 days of the date when they acquired knowledge of that decree. For the reasons mentioned above, we allow this appeal, reverse the order of the trial Court refusing to set aside the ex parte decree passed against the defendants in this case and send the case back to it with the direction that it will dispose of the application of the appellants for setting aside the ex-parte decree in accordance with law and in the light of the observations made in our judgment. Costs here shall be costs in the cause. We hereby direct that the parties shall put in their appearance in the trial Court either by themselves or through their pleaders on the 3rd May, 1965, and learned counsel for both the parties have undertaken that this direction shall be duly complied with. . ;