JUDGMENT Panckridge, J. - This is an appeal from the order of Mr. Justice McNair, dismissing the application of the Appellant for an order that a report made by the Registrar should be varied so far as she is concerned. The suit in which the application was made is a suit on a mortgage. The Appellant is a party as being the heir of her mother, one of the original mortgagors. There are three mortgages covered by the suit, which was instituted in 1932. In due course, a preliminary decree was made, and it was referred to the Registrar to enquire and report as to the sum due from the mortgagors on the basis of the three mortgages. 2. The Registrar made his report on September 11th, 1934, and it was filed on December 20th, 1934. The Registrar found that certain sums of money were due on the mortgages-sums which are very much in excess of the moneys originally advanced. In the course of the reference, the Appellant contended that she was entitled to the benefit of the Law of Damduput. If this law is applicable to the mortgage debt as far as it concerns her, it is beyond question that her liability will be considerably decreased. The Registrar however was of opinion that the Law of Damduput did not apply in the circumstances of the case, and he calculated the amount due without reference to it. 3. On January 2nd, 1935, the Appellant through her guardian ad litem served notice of motion upon the Respondents asking for variation of the report, and obtained special leave to serve the notice for January 3rd. 1935. The matter was adjourned, and came on for disposal before Mr. Justice McNair on January 17th, 1935. When it was called on, Mr. Kanjilal, for one of the Respondents, took the preliminary objection that, although the notice was served within the time prescribed by the rules, the notice was bad inasmuch as it was not accompanied by copies of the grounds. The Court accepted Mr. Kanjilal's objection and dismissed the application. 4. No formal judgment was pronounced, but it is admitted that the learned Judge followed a considered judgment of his own in Bepin Behary Shaha v. Ban Behary Shaha ILR 62 Cal. 369 (1934). A reference to that judgment shows that the learned Judge was there following a judgment of Mr. Kanjilal's objection and dismissed the application. 4. No formal judgment was pronounced, but it is admitted that the learned Judge followed a considered judgment of his own in Bepin Behary Shaha v. Ban Behary Shaha ILR 62 Cal. 369 (1934). A reference to that judgment shows that the learned Judge was there following a judgment of Mr. Justice Sale in Lutchmee Narain v. Baijnauth Lahia ILR 24 Cal. 437: s.c. 2 C.W.N. 57 (1897). 5. The Rule dealing with applications to discharge or vary reports is Rule 89 of Chap. XXVI of the Rules and Orders of the Original Side of the Court. The rule runs as follows: An application to discharge or vary a certificate or report stall be made by motion, upon notice to be given within fourteen days from the date of the filing thereof, or within such farther time as may be obtained for that purpose, but in that case the notice shall mention that it has been given with the leave of the Court. An application for further time may be made by petition in chambers without notice. 6. This rule is the same, word for word, as a former rule, No. 565, which was considered by Mr. Justice Sale in Lutchmee Narain v. Baijnauth Lahia ILR 24 Cal. 437: s.c. 2 C.W.N. 57 (1897). The passage in Mr. Justice Sale's judgment which Mr. Justice McNair followed in Bepin Behary Shaha v. Ban Behary Shaha ILR 62 Cal. 369 (1934) runs as follows: It is necessary that notice should be given within the time required by the rules or such further time as the Court may allow, and that such notice should be accompanied with the grounds of exceptions relied on by the party objecting to the report. 7. It is the failure of the Appellant to serve the Respondents with the grounds of exceptions on which she relied, at the same time as she served the notice, that led to the dismissal of her application. In Lutchmee Narain v. Baijnauth Lahia ILR 24 Cal. 437: s.c. 2 C.W.N. 57 (1897), exceptions to a report had been filed. No notice of motion to vary the report was given by the Defendants, but when the matter came on the list for further directions, the Defendants desired to have the report varied in accordance with their exceptions. In Lutchmee Narain v. Baijnauth Lahia ILR 24 Cal. 437: s.c. 2 C.W.N. 57 (1897), exceptions to a report had been filed. No notice of motion to vary the report was given by the Defendants, but when the matter came on the list for further directions, the Defendants desired to have the report varied in accordance with their exceptions. The Plaintiffs objected to this (and) drew attention to the terms of Rule 565. On enquiry from the Registrar, the learned Judge came to the conclusion that the practice had not been uniform, and that it was desirable to lay down a settled course of practice, and after consultation with Mr. Justice Jenkins he purported to lay down the practice in the words which I have set out. The judgment ends- In the absence of any such notice given in the manner indicated, the report shall be regarded as confirmed by effluxion of time. The rule should not be applied strictly to exceptions already filed. AS regards such exceptions, the alternative course may, I think, be permitted, namely, the hearing and disposing of them merely on the requisition of the parties. 8. It would appear therefore -that the observations of Mr. Justice Sale were obiter, because, as I read the report, he considered the exceptions, which the Defendants had filed, on their merits. With regard to what he laid down as to the necessity of proceeding by notice of motion, that is clearly required by the express terms of the old rule and the present rule. Further, if notice of motion is not given within the time specified by the rule, the report becomes confirmed by effluxion of time. 9. The part of the judgment however which appears to me questionable, is that which lays down that the notice should be accompanied with the grounds of exceptions, relied on by the party objecting to the report. Even if the proper practice were for the grounds of exceptions to accompany the notice, it does not necessarily follow that failure to serve the grounds with the notice would involve the dismissal of the application. However, as I interpret the rules, the whole ground is covered, and there is no room; for invoking any practice of the Court, because there is no gap in the rules which necessitates such a course. Rule 89 of Chap. However, as I interpret the rules, the whole ground is covered, and there is no room; for invoking any practice of the Court, because there is no gap in the rules which necessitates such a course. Rule 89 of Chap. XXVI, which, provides that application is to be made by motion, obviously attracts the provisions of Chap. XX, which deals with motions and Rules nisi; and it is to that Chapter one should look, to see what the proper practice is, when a party desires to have a report varied, since the only way in which it is possible to vary a report is to proceed by notice of motion. Rule 3 of that Chapter requires notice to parties affected by the motion. Under Rule 4, the notice is to state the time and place of application and the nature of the order asked for with a note at the foot specifying the grounds in support of the application. In this case, the notice, which was admittedly served within the time prescribed by Chap. XXVI, Rule 89, had a; note at the foot to the following effect: Grounds:-"Petition of Mohammed Dilwar Hos. sain, the guardian-ad-litem of the said minor Defendant, and the records and proceedings had in the above suit and the Reference No. 217 of 1931, had herein. No objection was taken by the Respondents to the effect that this form of note is not a " note at the foot specifying the grounds " within the meaning of Rule 4. Learned Counsel however argued before us that what is intended by the words " a note specifying the grounds " is some sort of summary of the points of law and other points which the applicant is proposing to urge, and he suggests that in the present case the note of the grounds should have been in some such form as this: For that the learned Registrar was wrong in not applying the law of Damdupat in taking the accounts. 10. Though the rules are not as happily worded as they might be, we consider that what they contemplate is something like the note at the foot of the notice of motion in this case. 10. Though the rules are not as happily worded as they might be, we consider that what they contemplate is something like the note at the foot of the notice of motion in this case. We say this, because by Rule 9 it is provided that notice shall be given of all the grounds intended to be used, and copies of such grounds other than of proceedings already filed shall be supplied to any party requiring the same on payment of the usual charges. No party could possibly require a copy of the grounds. In the sense in which the learned Counsel submits that the term is used in the rules, because he has already notice of the grounds in the note at the foot of the motion. It is clear, therefore, that what the rules contemplate is that the notice of motion should apprise the Opposite Party of the materials which the applicant intends to use, and then if the Opposite Party so wishes, he can obtain a copy of those materials under Rule 9 by asking the applicant to supply it on payment of the usual charges. From this it follows that in the case of notice of motion, it is not necessary nor is it right, for the applicant to serve his notice accompanied by copies of the grounds to be used in support. The observations of Mr. Justice Sale on this point are, in my opinion, at best, recommendations as to what a satisfactory practice would be, and cannot possibly override the specific procedure prescribed by the Motion Rules which, as I have said, applies to applications to vary or discharge reports by reason of the provisions of Chapter XXVI, Rule 89. 11. In our opinion, therefore, Mr. Justice McNair was wrong in Bepin Behary Shaha v. Ban Behary Shaha ILR 62 Cal. 369 (1934) when he held that the observations of Mr. Justice Sale in Lutchmee Narain v. Baijnauth Lahia ILR 24 Cal. 437: s.c. 2 C.W.N. 57 (1897) were statements of law which he was bound to follow; and as a consequence his dismissal of the application on this preliminary point cannot be supported. 12. 369 (1934) when he held that the observations of Mr. Justice Sale in Lutchmee Narain v. Baijnauth Lahia ILR 24 Cal. 437: s.c. 2 C.W.N. 57 (1897) were statements of law which he was bound to follow; and as a consequence his dismissal of the application on this preliminary point cannot be supported. 12. The question then arises whether, having set aside the order of dismissal, we should deal with the appeal on the merits, or whether the matter should be sent bade to the Original Side for the merits to be dealt with there. My own inclination in the circumstances is to dispose of the matter finally; and. I understand that the parties before us would not object to our taking such a course. If it goes back to the Original Side, there will probably be an appeal against whatever order is made, and the parties will thus be involved in extra expense. However, the situation is somewhat complicated by the fact that one of the parties to the suit, who has not appeared in the suit or on the reference, has died. He is the heir of one of the original mortgagors, and in such circumstances it appears to us that his interest might be affected by our decision. Therefore we are not disposed in his absence to deal with the matter on the merits. 13. The order accordingly is that this appeal be allowed with costs, and that the application do appear in the Motion List of the Judge on the Original Side, taking Motions on July 13th next. Costello, J. I agree.