JUDGMENT Akram, J. - The Opposite Parties Nos. 1 and 2 on obtaining a mortgage decree against the Petitioners receivers and the Opposite Party No. 3, insolvent for Rs. 1,40,656 and further interest at two per cent, per annum till realisation in Title Suit No. 16 of 1934, put certain properties to execution sale and themselves purchased the same in February, 1940 and August, 1940, for Rs. 51,600 and Rs. 50,000 respectively; that the Petitioners thereupon filed two applications for setting aside the sale under Or. 21, r. 90, C. P. C.--Miscellaneous Cases Nos. 18 and 50 of 1940 which are pending disposal. The Petitioners then further filed an application under sec. 36 of the Bengal Money-Lenders Act for re-opening the mortgage decree and this was disposed of by passing a new preliminary decree for Rs. 1,20,000 plus costs without any post-decretal interest, the Petitioners being allowed to pay the costs within three months and the balance equally in ten equal kists beginning from Magh 1349 B. S. and ending in Magh 1358 B. S. (Miscellaneous Case No. 46 of 1940); against the said decision the Petitioners filed Appeal No. 163 of 1942 while the Opposite. Parties Nos. 1 and 2 filed Appeal No. 220 of 1942. Both these appeals came to be dismissed. The Opposite Parties Nos. 1 and 2 thereafter filed two applications, one in the Miscellaneous Cases Nos. 18 and 50 of 1940 mentioned above praying for their dismissal and the other in the Title Suit No. 163 of 1934 for passing a final decree on the ground of default in payment of instalments under sec. 34 (1) (a) (ii) of the Bengal Money-Lenders Act. The learned Subordinate Judge took up these applications together and by his order dated 2nd April, 1945, directed that the Petitioners must pay up all the amounts for which default was made within 15 days from that date else the final decree would be drawn up and that he would like to hear the parties on 5th May 1945, before passing final order in the Miscellaneous Cases. Against that order the Petitioners obtained the present rule. The main point that has been argued by the learned Advocate for the Petitioners is that the Court below acted illegally in holding that the Petitioners were entitled to a final decree without fresh application and service of fresh notice under sec. Against that order the Petitioners obtained the present rule. The main point that has been argued by the learned Advocate for the Petitioners is that the Court below acted illegally in holding that the Petitioners were entitled to a final decree without fresh application and service of fresh notice under sec. 34 (1) (a) (ii) of the Bengal Money-Lenders Act. 2. The occasion for this argument appears to have arisen on account of the fact that in appeals Nos. 163 and 220 of 1942 an order was passed to the effect that the word "and" occurring in the decree of the lower Court was to be changed into "or" in the following passage: In default of one of those 11 kists and in case any property of the mortgage be exposed to sale for arrears of revenue, rents, cesses, etc., the Plaintiffs decree-holders shall be entitled to apply for final decree after notice provided in sec. 34 (1) (ii) of the Bengal Money-Lenders Act. 3. It is argued now that the decree of the lower Court was merged in the decree of the High Court and the Petitioners were thus entitled to a fresh notice and there should have been a fresh application after the disposal of the High Court appeal; furthermore that there being a variation in the decree, in any event, the previous notice was of no avail. 4. It is clear that there was no change by the High Court decree so far as the instalments and the dates for their payment were concerned. Sec. 34 lays down that upon default in the payment of any of the instalments the decree-holder shall be entitled to apply for a final decree. No further conditions therefore can be imposed by the Court upon the decree-holder before he is allowed to exercise the right conferred upon him under sec. 34 (1) (ii). The word "and" in the decree of the trial Court does not seem to me to indicate that both the conditions were to be satisfied cumulatively before the decree-holder could exercise his right. The use of the word " and " may have been somewhat ambiguous and all that was done in appeal, in my opinion, was to make the meaning clear to avoid further litigation. The use of the word " and " may have been somewhat ambiguous and all that was done in appeal, in my opinion, was to make the meaning clear to avoid further litigation. The appeals were dismissed, the order of the trial Court was affirmed and the alteration was to be made in the decree of the trial Court itself; having regard to the nature of the decree of the trial Court and the dismissal of the appeal, I do not think that, any fresh notice or application was necessary in this case. The decisions also relating to merger in respect of such decrees are not uniform--see the case of Raja Sashikanta Acharyya v. Raja Sarat Chandra Rai Choudhury 34 C. L. J. 415 at 425 (1921). Next it is to be observed that the application for making the decree final was made as early as 6th March, 1943, after service of notice on 25th September, 1942. The hearing of that application was postponed on account of the appeals preferred in the High Court. Upon the disposal of the appeals the matter was taken up, so that the consideration of the application merely remained in abeyance pending the disposal of the said appeals. The notice therefore seems to me to be a good notice in spite of the fact that it was given at a time when the preliminary decree apparently required two conditions to be satisfied before entitling the decree-holder to make the application, sinning that two conditions were intended to be satisfied conjointly as urged by the Petitioners one of them has been removed by the decree of the High Court so that now no valid objection can be taken to that notice. Apart from all these considerations, it is to be observed that no money at all has been paid by the Petitioners towards the mortgage decree which was originally passed sometime in 1938 although they are in possession of the property which yields a considerable sum every year. The object of the Petitioners seems to me merely to thwart decree-holders in their attempt to realise money which is justly due to them. 5. In these circumstances, I am not disposed to interfere under sec. 115, C. P. C. with the order passed by the Court below. I accordingly discharge this rule with costs--the hearing-free is assessed at three gold mohurs. Chakravartti, J. 6. 5. In these circumstances, I am not disposed to interfere under sec. 115, C. P. C. with the order passed by the Court below. I accordingly discharge this rule with costs--the hearing-free is assessed at three gold mohurs. Chakravartti, J. 6. I agree in the order proposed by my learned brother, but as the reasons on which I have arrived at the same conclusion are slightly different, I would take the liberty of stating them. 7. The facts have already been stated in full and need not be repeated. Suffice it to say that the original mortgage decree was re-opened and a new preliminary mortgage decree passed on the 24th January, 1942. From that new decree two appeals were preferred to this Court, one by the decree-holders and another by the judgment-debtors, and they were finally decided on the 14th November, 1944. In between those two dates, when the appeals to this Court were pending, a notice was served on the judgment-debtors on the 25th September, 1942, whereby they were informed that an application for a final decree was going to be made. Thereafter, the application was made on the 6th March, 1943. 8. The appeals to the High Court were both dismissed, but in respect of one of the provisions contained in the decree as passed by the trial Court, a variation was directed. The decree of the trial Court was that the costs allowed would have to be paid within three months and the balance of the decretal amount would be payable in 10 equal kists in the month of Magh each year, beginning from Magh, 1349 B. S. and ending with Magh, 1358 B. S. It was further directed that in default of any one of the kists and in case any of the mortgaged properties was exposed to sale for non-payment of revenue or rent, the decree-holders would be entitled to apply for a final decree. This "and" between the two conditions was changed by the High Court into "or" and the order passed was that subject to this variation in the decree, the appeals were dismissed. 9. The notice which was served when the appeals to the High Court were pending, necessarily had reference to the trial Court's decree and alleged that default had been committed as respects payment of the instalment of costs within three months therefrom. 9. The notice which was served when the appeals to the High Court were pending, necessarily had reference to the trial Court's decree and alleged that default had been committed as respects payment of the instalment of costs within three months therefrom. The application for a final decree was based on that notice. 10. The application, after suffering numerous vicissitudes to some of which my learned brother has referred, ultimately came to be taken up on the 4th January, 1945, i.e., after the appeals to the High Court had been disposed of and the decree varied. One of the reasons why the application could not be disposed of earlier was that although the judgment-debtors filed no objections and there was apparently no bar to the passing of a final decree, no decree could actually be passed as the records were lying in the High Court. On the 4th January, 1945, the decree-holders, prayed by a petition that their original application for a final decree might be proceeded with. The judgment-debtors raised an objection that no final decree could be passed as no fresh notice had been served after the variation of the preliminary decree by the High Court. The matter came to be heard on the 2nd April when the Court held that the decree-holders were entitled to a final decree on the original notice and application, but the judgment-debtors would have a fortnight's time to pay up the entire decretal amount if they could and wished to. It is against this order that the present Rule was obtained by the judgment-debtors. 11. The objection to the order, as far as I could understand it, is that the notice served on the 25th September, 1942, was not a good notice even in accordance with the preliminary decree as passed by the trial Court; and secondly, that assuming the notice was a good notice when served and the application a proper application when it was made, still, after the decree passed by the High Court, that notice could no longer suffice to support an application for a final decree and the original application for such a decree could no longer be proceeded with. It was contended by Mr. It was contended by Mr. Das that the effect of the decree passed by the High Court was to supersede altogether the decree passed by the trial Court and the decree-holders would have to start afresh by serving a fresh notice and thereafter by making a fresh application. 12. Dr. Basak who appeared for the decree-holders contended that in the circumstances of the case the statute itself gave a right to his clients to obtain a final decree forthwith. Sec. 34 (1) (a) (ii) of the Bengal Money-Lenders Act, it was contended, required only three things, viz., a direction for payment in instalments, a default and a notice; and since all the three requisites were present, there was nothing on which the claim of his clients could be resisted. Dr. Basak further contended that in any event, having regard to the conduct of the Petitioners, the Court ought not to interfere in their favour in revision. 13. I am unable to accept the first contention of Dr. Basak as sound. Sec. 34 (1) (a) (ii) of the Bengal Money-Lenders Act does not, as the scheme of the whole section would show, give any rights to the decree-holder of its own force, but merely directs what the decree should provide. It does not lay it down as a substantive provision of law that the decree-holder shall be entitled to apply for a final decree in the event of a default in respect of any one of the instalments : what it provides is that such a direction shall be contained in the decree. When the question in a particular case is not the form of the decree, but whether a right to a final decree has or has not arisen under the decree as it stands, it is impossible to rely on the statute for an answer. Reference must be made to the decree itself. 14. That takes me to the second contention of Mr. Das, but before I take it up, I would deal with his first. The first contention was that the notice was bad even at the date when it was given, because the only decree then to be regarded was the decree of the trial Court and under that decree two conditions had to be fulfilled before a right to a final decree could arise. The first contention was that the notice was bad even at the date when it was given, because the only decree then to be regarded was the decree of the trial Court and under that decree two conditions had to be fulfilled before a right to a final decree could arise. The two conditions were, a default and exposure of some or all of the properties to sale, but it was said that in fact only a default had occurred. It is true that the only decree existing at the date of the notice was the decree of the trial Court, but assuming it imposed two conditions to be jointly fulfilled, there is nothing before us to show that the second contingency had not arisen. This is a question of fact, not canvassed in the Court below, and in my view it is impossible to hold on this ground that the notice, at the date it was given, was bad under the decree as it then stood. 15. As regards the second and main contention of Mr. Das, I am prepared to hold, though it is not necessary to decide the matter finally, that the decree of the trial Court did merge in the Appellate decree. Cases of the highest authority have gone the length of holding that even where the Appellate Court simply dismisses the appeal, without expressly affirming the decree appealed from, there is a merger, provided the decision is one on the merits. The only decree thereafter subsisting is the decree of the Appellate Court, although its terms may have to be discovered by a reference to the trial Court's decree. Again, where the lower Court's decree is expressly affirmed, there can be no question that it merges and certainly none at all where it is varied, as it was in the present case. 16. Dr. Basak contended that there was no real variation in the present case and what was done by the High Court was simply to clarify the meaning of the trial Court's decree by altering the somewhat ambiguous language in which it had been expressed. He pointed out that under sec. 16. Dr. Basak contended that there was no real variation in the present case and what was done by the High Court was simply to clarify the meaning of the trial Court's decree by altering the somewhat ambiguous language in which it had been expressed. He pointed out that under sec. 34 (1) (a) (ii), the Court was bound to direct that in default of payment of any of the instalments, the decree-holder would be entitled, on giving notice, to apply for a final decree and no further condition, he contended, could legally be added. A Court's decree should be read, whenever possible, as conforming to the law and the two conditions appearing in the trial Court's decree in the present case should therefore be read as disjunctive and not conjunctive. All that the High Court had done was to point out this meaning and make it clear. 17. I am inclined to agree with Dr. Basak that even on the language used in the trial Court's decree, it is possible to read the two conditions as disjunctive and to hold that when the learned Judge said "in default of one of the kists and in case the mortgaged properties be exposed to sale," he meant "in default of one of the kists and also in case any property," etc. imposing thereby two separate conditions, one under sec. 34 (1) (a) (ii) and the other under 34 (7) (a) (i). I am, however, bound by the decision of the High Court which seems to me not to have clarified an ambiguity but corrected an error. In the grounds of appeal taken to the High Court by the decree-holders, they themselves complained that the learned Judge had imposed two conditions to be jointly fulfilled whereas he ought to have made them alternative; and the judgment of the High Court shows that this contention was accepted as sound and the decree was directed to be varied. There was thus a real variation and if there was, then surely the decree of the trial Court merged in the High Court's decree. 18. To take this view, however, is not to hold that the consequences contended for by Mr. Das necessarily follow. As stated before, subject to the variation to which reference has already been made, the decree of the trial Court was affirmed. 18. To take this view, however, is not to hold that the consequences contended for by Mr. Das necessarily follow. As stated before, subject to the variation to which reference has already been made, the decree of the trial Court was affirmed. Assuming that the decree of the trial Court was superseded by the decree of the High Court and merged therein, it has to be examined what the meaning of the supersession or merger really is. We are concerned only with the provisions in the decree which were not interfered with and so far as those are concerned, the position is the same as that in a case where the decree of the trial Court is simply affirmed. As I understand the matter, supersession or merger in such a case means no more than this that the directions contained in the decree remain the same, but the sanction behind the directions, in stead of remaining the sanction of the trial Court, becomes the sanction of the Court of Appeal. As I put it in course of the argument, for the command of the trial Court is substituted the command of the Court of Appeal, but the command itself remains the same: that is to say, the things directed to be done by the decree are not in any way altered. 19. Mr. Das contended that this could not be so in every case and he instanced the case of a decree where some payment is directed to be made within or up to a certain period. When such a decree is affirmed on appeal, so it was argued, the Appellate Court, to use the language of the Judicial Committee, adopts its terms and carries their effect down to a later date, [Raja Bhup Indar Bahadur Singh v. Bijai Bahadur Singh L. R. 27 I. A. 209: s.c. I. L. R. 23 All. 152 (1900)] and the period must be computed by reference to the Appellate Court's decree. I do not think that the principle can be stated in such broad terms, nor that it in any way affects the proposition I have above stated. 152 (1900)] and the period must be computed by reference to the Appellate Court's decree. I do not think that the principle can be stated in such broad terms, nor that it in any way affects the proposition I have above stated. The case before the Privy Council was one where the trial Court had decreed future mesne profits and that decree having been reversed by the High Court but ultimately restored by the Privy Council, their Lordships held, on the question arising in execution, that the decree-holder was entitled to mesne profits up to the date of deli very of possession after the previous order of the Privy Council, such possession having been taken before three years had elapsed. The reason given was that the trial Court had decreed future mesne profits, i.e., profits future to the date on which the decree had been passed, and the Order in Council of 1895, speaking with the language of the trial Court's decree of 1887, clearly carried all profits up to its own date. This reason supports the principle I have stated viz., in a case of affirmance, the things directed by the trial Court's decree are not altered and it only adds that where the directions contained in the original decree, construed by reference to the date of the Appellate decree, themselves lead to certain result, that result must be accepted and enforced. The principle remains and the principle is that in a case of affirmance of the lower Court's decree, the meaning of supersession or merger is that in stead of the lower Court directing that the parties shall do certain things, it is the Appellate Court which directs that they shall do exactly what the lower Court bad directed them to do. And no different result can follow from such direction at least when the original directions have reference to specified dates. 20. Taking this view of supersession or merger, I might next examine the position in the present case. And no different result can follow from such direction at least when the original directions have reference to specified dates. 20. Taking this view of supersession or merger, I might next examine the position in the present case. The decree of the trial Court granted the judgment-debtors 11 instalments and directed that the costs would be payable within three months and the balance of the decretal amount in 10 equal and annual Magh kists, beginning from Magh, 1349, B. S. and ending with Magh, 1358, B.S. It is impossible to say that when this decree was affirmed on appeal, the result was that the period of three months for the first instalment would have to be computed from the High Court's decree and that the remaining kists would be payable in months of Magh of succeeding Bengali years. Such a construction would be plainly inconsistent with the direction contained in the trial Court's decree which was not interfered with, viz., the annual kists which were to follow the first instalment, would begin from Magh, 1349, B. S. and end with 1352, B. S. It is quite clear that in spite of supersession of the trial Court's decree, the terms of that decree and the instalments directed thereby remained, the same in all respects, including the dates of payment. The High Court decree of 1944, speaking by the language of the trial Court's decree of 1942, said that the costs would be payable within three months of the latter decree and one of the further instalments would be payable in Magh each year, beginning from the year 1349. There could be no question in the present case of carrying the effect of these directions down to a later date. 21. If that be so and if the instalments, in spite of the decree of the trial Court, are to be found in that decree, it follows that non-payment of the costs within three months of the decree of the trial Court would constitute a default even under the preliminary decree as merged in or superseded by the decree of the High Court. 22. The second contention of Mr. Das, as already stated, was that assuming the notice was a good notice and the application a good application at the dates they were given and made, still the Court's decree swept them completely away. 22. The second contention of Mr. Das, as already stated, was that assuming the notice was a good notice and the application a good application at the dates they were given and made, still the Court's decree swept them completely away. Having regard to the effect of the High Court's decree, as explained above, this argument would not bear examination. 23. Taking up the question of the notice first, the notice required by the statute has simply to allege that a particular default has been committed and say that an application for a final decree will be made. The notice given in this case alleged that a default had been committed in respect of the payment of the costs within three months of the trial Court's decree. Since neither the direction to make such payment within such time, nor the default consequent upon non-compliance with this direction had affected by the High Court decree, the notice based on such default, in my view, had not spent itself. The default still remained a default, and the same default, and I do not see why the notice could not ground an application for a final decree after the preliminary decree had affirmed by the High Court with a slight variation in another respect. Indeed, if anything, the variation strengthened the notice which alleged only default and not also exposure of some property to sale, for, the latter condition ha been converted by the High Court into an alternative, default alone was now sufficient to enable the decree-holder to apply for a final decree. 24. It might be said that a notice could be given only after the preliminary decree and if the preliminary decree of the trial Court was superseded by the High Court's decree, the notice, given before the latter decree, could not be a proper notice. In my view, this argument would be fallacious. As soon as a default, under the terms of the trial Court's decree, occurred, a right to give notice arose. Further proceedings in the suit had not been stayed, pending the hearing of the appeals, and a notice was in fact given. In my view, this argument would be fallacious. As soon as a default, under the terms of the trial Court's decree, occurred, a right to give notice arose. Further proceedings in the suit had not been stayed, pending the hearing of the appeals, and a notice was in fact given. Since the basis of the notice namely the default, was not affected by the High Court's decree, it was not necessary to give a fresh notice after that decree, just as it is not necessary to apply for a fresh final decree when, pending an appeal from a preliminary decree, subsequently affirmed, a final decree is passed by the trial Court. See Bhola Nath Sen v. Jogendra Mohan Das I. L. R. [1939] 1 Cal. 477. 25. As regards the application, it is to be noted that an application is to be made not for making any particular preliminary decree final, but for passing a final decree. There must of course be a preliminary decree and Mr. Das referred us to the form of a final decree for sale which begins as "Upon reading the preliminary decree." etc. But the application was taken up for consideration on the 4th January, 1945, and ultimately on the 2nd April, after the High Court's decree had been passed and on those dates there was nothing to prevent the Court from passing a final decree by reference to the preliminary decree as it had emerged from the High Court. The application merely asked for a final decree, an application duly made and awaiting disposal, and I do not see why on that application, although it was made before the High Court's decree, a final decree could not be passed. 26. It seems to me that the answer to the contentions of Mr. Das is to be found not in the doctrine of supersession, broadly stated, but in the meaning of that doctrine in a case of complete identity of the terms of the original and appellate decrees. But whether I am right in the view I have taken or not, I agree entirely with my learned brother that the argument of Mr. Das is an extremely technical one and in the facts of the present case it would not be right to give effect to it in revision. 27. But whether I am right in the view I have taken or not, I agree entirely with my learned brother that the argument of Mr. Das is an extremely technical one and in the facts of the present case it would not be right to give effect to it in revision. 27. In the first place, I cannot see that any prejudice has been caused to the judgment-debtors. The application came to be heard long after the High Court's decree and a final decree was then over-due, since no payment had been made, either of the first or of any other instalment, during the space of three years from the decree of the trial Court. The default is not denied and if a fresh notice was given and a fresh application made, I do not see how the position of the judgment-debtors would have been improved. 28. In the second place, the conduct of the judgment-debtors has been such that they do not deserve any indulgence at all. The loan was advanced in the year 1931 and the debtor was adjudicated an insolvent in 1933. Since then the Petitioners, as Receivers, have been in possession of the properties which yield a considerable income and they have not thought fit to pay a single piece towards the satisfaction of this debt, or as we are informed, any other debt. When the appeals to the High Court were pending, the Petitioners obtained an order for stay on condition that they would pay a sum of Rs. 4,000 within one month. They did not make any payment, but the default clause attached to the order, viz., if the payment was not made, the Rule would stand discharged, came to be nullified, because the trial Court could not in fact proceed with the case as the records had been called up by this Court. The Petitioners therefore achieved indirectly what they had prayed for, although they tailed to honour the condition on which their prayer had been granted. Since then, there have been further defaults and there has been no inclination on the part of the Petitioners to make any payment, however, small. Even at this time of the day, they could have avoided the final decree by simply paying off the instalment of costs under the proviso to sec. 34 (1) (a) (ii), but, in stead, they chose to set up further obstructions. Even at this time of the day, they could have avoided the final decree by simply paying off the instalment of costs under the proviso to sec. 34 (1) (a) (ii), but, in stead, they chose to set up further obstructions. As pointed out by my learned brother, the applications they made under Or. 21, r. 90 against the sales held under the re-opened decree are still pending. In the circumstances I am not prepared, acting in revision, to give the Petitioners an opportunity to add a further chapter to this long-drawn litigation on a ground which is merely a technical one and the soundness of which, even as a technical ground, is by no means clear. I agree that the Rule must be discharged with costs, as proposed by my learned brother.