JUDGMENT Woodroffe, J. - This is an application by the Defendants which it appears to me should clearly be granted. The suit was one for ejectment. On the 21st June 1905 a consent decree was passed. The Defendants agreed to pay to the Plaintiff the sum of Rs. 3,625 and the Plaintiff for her part agreed to execute a lease of the house 28, Mullick Street, in favour of the Defendants. The Plaintiff was within three days of the decree to present for execution a lease which was to contain the same conditions as were contained in a previous lease of the premises, dated the 27th February 1901; the Defendants had then within one month from the date of presentation to execute and register the lease. The decree then provided that in default of execution and registration the Defendants were to be ejected. It is to be observed that the decree is not an absolute one capable of immediate execution. It is a conditional decree which is to become absolute upon the failure of the Defendants to do a certain thing, viz., to execute and register the lease presented by the Plaintiff. But there can be no such failure unless the Plaintiff has presented a lease and that lease is according to the decree in the same terms as the previous lease. As regards the first point, it is admitted that a lease was presented though not within but considerably later than the time prescribed by the decree. It is also admitted that the Defendants have made the payments directed by the decree. The parties are, however, at contest as to whether the lease so presented was or was not in terms of the previous lease. The Plaintiff says that it was. The Defendant denies it. Considerable correspondence passed between the attorneys of the parties on the point, the allegation of the Plaintiff being that she had tendered a lease in proper form. She on the 16th August gave notice that she would apply for execution of the decree by ejectment. This was not done but further correspondence took place with regard to the terms of the draft lease. This went on until towards the end of August. Then on the 31st August the Plaintiff without notice to the Defendants applied for and obtained an order for execution of the decree by ejecting the Defendants. This was not done but further correspondence took place with regard to the terms of the draft lease. This went on until towards the end of August. Then on the 31st August the Plaintiff without notice to the Defendants applied for and obtained an order for execution of the decree by ejecting the Defendants. This application was supported by affidavits in which it was alleged that the Plaintiff had tendered a lease in terms of the decree, that the Defendants had neglected to execute it and that consequently on such default they were liable under the decree to be ejected. On the 11th September the Defendants' attorneys wrote to say in effect that they would execute a lease in terms of the previous lease and enclosed a draft for approval. In reply to this they were informed that the Plaintiff had obtained an order for delivery of possession and the draft lease was returned. The Defendants' attorneys then wrote that they were considerably surprised to hear of this and asked for a stay of the order. The Defendants thereafter applied for and obtained a rule for stay of execution. On its being heard, the Plaintiff took the objection, amongst others, that the application could not be granted as execution had in fact been effected. I then adjourned the hearing of the rule for ten days, on certain terms, in order that the Defendants might apply to set aside the order for execution. They have now done so upon the ground that the order was made without notice to them and was as well as the possession thereunder fraudulently obtained. It has been first objected that the application is barred but in my opinion none of the articles of the Limitation Act cited in support of this contention are applicable. Then it is said that there was no fraud and that the Code does not require any notice to be given, the only sections which do require notice being, it is said, secs. 232, 248, 258 and 261. It is not necessary for me to enquire into the allegations of fraud for in my opinion it is a sufficient ground for this application that notice was admittedly not given to the Defendants of the application made by the Plaintiff for execution. 2. 232, 248, 258 and 261. It is not necessary for me to enquire into the allegations of fraud for in my opinion it is a sufficient ground for this application that notice was admittedly not given to the Defendants of the application made by the Plaintiff for execution. 2. The Code in its provisions relating to execution appears to deal with the case of absolute decrees capable upon their completion of immediate execution and does not seem to provide for the execution of a conditional judgment such as that before me. I think, therefore, that the fact that the Code did not require notice to be given is no answer to the application inasmuch as the provisions relating to notice deal with decrees of a different class to that which has now been executed. Then should notice have been given. It is an elementary principle that (in the absence of any special legislative rule excusing notice) no order should be made in favour of one party against and to the prejudice of another unless that other has had an opportunity of showing that it should not be made. And the Court has an inherent power to deal with an application to set aside an order made ex parte and to set it aside upon a proper case being substantial [Bibee Tulsiman v. Harihar Mahato 9 C.W.N. 81 (1905)]. In the present case the Plaintiff was only entitled to an order for execution if the Defendants made default in executing the lease presented to them provided that that lease was in the proper terms. It was and is contended that it was not and without expressing any opinion on the merits it is clear that there is a substantial question for trial on the point. It is also obvious that the Defendants are entitled to be heard on this and if they are not heard they will be without remedy and may be jointly unjustly deprived of the benefit to which they are entitled under the consent decree notwithstanding that they may have done all that it lay upon them to do. I therefore set aside the order for execution which the Plaintiff obtained ex parte and I do so after reference to Mr. Justice Sale who made it. I therefore set aside the order for execution which the Plaintiff obtained ex parte and I do so after reference to Mr. Justice Sale who made it. I have his authority to say that he would not have passed it had the fact that the application was without notice to the Defendants been present to his mind. I also direct that the possession which has been acquired under the order now set aside be restored. As it is desirable that proper practice in cases such as this be known I would state the course which should be followed. When a conditional decree such as this is, is made the Plaintiff on default by the Defendant should apply to the Court which passed the decree on notice to the Defendant by motion or notice or by rule for an order absolute. Then if and when such an order is obtained application may be made in the usual way for execution of that order according to the provisions of the Code. On the Plaintiff's applying on notice for such order the Court will determine the question if necessary directing the issue to be tried on evidence whether a proper lease has been tendered or not. If such a lease has been tendered and there is found to be default on the part of the Defendants then the Plaintiff will be entitled to an order absolute for ejectment of the Defendants and should thereafter apply to execute that order. If such a lease has not been tendered then the Court will upon that portion of the application of the Defendants which I do not now deal with direct that a lease be settled in terms of the consent decree by the Registrar and that such lease be executed and registered by the parties. The Plaintiff must pay the costs of this application.