JUDGMENT K.P. Singh, J. - This second appeal has been directed against the judgment of Shri O.P. Jain, First Additional Civil Judge, Muzaffarnagar, in Misc. Apepal No. 28 of 1973 Yashpal Singh v. Ved Prakash. The Civil Judge has confirmed the order dated 24-2-1973 passed by Shri M. C. Jain, learned Munsif, Kairana, dismissing the application moved by the appellants for permission to deposit the sum of Rs. 250/- and preparing final decree for redemption of the unufructuary mortgage. 2. Necessary facts giving rise to the above noted second appeal are the appellants are heirs of the mortgagor and the respondents are heirs and representatives of the mortgagee The appellants had brought original Suit No. 232 of 1966 against the defendants mortgagees for redemption of the defendants mortgagees for redemption of the mortgage dated 28-11-1928. On 17-1-1967 an ex parte decree was passed in favour of the appellants on 23.2.1967. an application was moved on behalf of the defendants for setting aside the ex parte decree. On 24-2-1967 the plaintiff- appellant's suit was dismissed as he had not complied with the ex parte decree by depositing the amount due directed within the time given in the decree. On 8-7-1967 the defendant's application for setting aside the decree was not pressed and it was dismissed. It is noteworthy that the plaintiff-appellants had filed another suit No. 326 of 1967 for redemption of the mortgage which was dismissed on the ground that it was not maintainable because it had been brought within three years from the date of the earlier decree. After the dismissal of the plaintiffs second suit of the year 1967, the plaintiff made an application under Order 34, Rule 8(1), C.P.C. for preparation of final decree. Another application was also moved by the plaintiffs-appellants for making deposit of the amount due directed in the ex parte decree accompanied by a tender of the requisite amount. Both the applications moved by the plaintiffs-appellants were decided by the trial court through its order dated 24-2-1973. Against the aforesaid order of the trial Court dated 24-2-1973 the plaintiffs appellants had preferred an appeal which was dismissed by the appellate court through its judgment dated 17-8-1973. Aggrieved by the judgment of the appellate court dated 17-, 8-1973 the plaintiffs appellants have approached this Court in the above-noted second appeal. 3. Against the aforesaid order of the trial Court dated 24-2-1973 the plaintiffs appellants had preferred an appeal which was dismissed by the appellate court through its judgment dated 17-8-1973. Aggrieved by the judgment of the appellate court dated 17-, 8-1973 the plaintiffs appellants have approached this Court in the above-noted second appeal. 3. A preliminary objection has been raised on behalf of the defendants mortgagees to the effect that the order passed by the trial court was neither appealable to the first appellate court nor a second appeal would be entertain able by this Court. 4. The learned counsel for the plaintiffs appellants has suggested that since the application under Order 34, Rule 8 of the Civil Procedure Code has been dismissed by the trial court, therefore, the aforesaid order would tantamount to refusal to pass final decree and to dismiss the suit itself, therefore, the first appeal against the order of the trial court was maintainable as well as second appeal to this Court would also lie. 5. In my opinion, the suggestion of the learned counsel for the plaintiffs appellants appears as correct. The suggestion of 'the learned counsel for the plaintiffs appellants finds sufficient support from the observations made by a learned single Judge of Orissa High Court in the ruling reported in AIR 1963 Orissa 61, Bhagat Sit v. Balram Sit but it is note-worthy that the plaintiffs appellants did not prefer appeal against the judgment of the trial court treating it as a decree. Only a miscellaneous appeal under Order 43 of the Civil Procedure Code was filed which has been dismissed by the lower appellate court. Therefore,a relevant question arises whether the above-noted second appeal would be maintainable in the facts and circumstances of the present case. 6. However, if the plaintiffs had followed the procedure prescribed by law, there would have been no difficulty in holding that the First Appeal lay against the judgment of the trial court and the second appeal would be entertainable by this Court. Since the plaintiffs had filed only a Misc. Appeal under Order 43 of the Civil Procedure Code which has been dismissed by the lower appellate Court, therefore, there is difficulty in holding that the above second appeal would be entertainable in the facts and circumstances of the case. Since the plaintiffs had filed only a Misc. Appeal under Order 43 of the Civil Procedure Code which has been dismissed by the lower appellate Court, therefore, there is difficulty in holding that the above second appeal would be entertainable in the facts and circumstances of the case. Since the plaintiffs have paid court-fee more that the requisite court-fee payable on a revision petition, I have proceeded to examine the contentions raised on behalf of the parties on merits. I have not adhered to technicalities. In my opinion, the impugned judgments suffer from illegalities and material irregularity therefore, they are amenable to interference even in exercise of revisional jurisdiction by this Court. However, the question of maintainability of the second appeal will be dealt with later. 7. The trial court in its judgment dated 24-2-1973 has wrongly assumed that the ex parte decree dated 17-1-1967 was to the effect that if the amount due was not deposited within one month, the suit shall stand dismissed whereas the correct fact is that the aforesaid ex parte decree dated 17-1-1967 provided that if the amount due was not deposited within time the suit will be dismissed. Since the money was not deposited within the time allowed, the trial court dismissed the suit on 24-2-1967 without calling upon the plaintiffs appellants to explain the situation why money was not deposited within time. 8. The main contention before me is that the plaintiffs did not pray for recalling the order of dismissal of the suit therefore, the applications moved by the plaintiffs were rightly rejected by the trial court and the judgment of the trial court was rightly confirmed by the lower appellate court. It has also been contended on behalf of the defendants respondents that because of wrong on the part of the plaintiffs appellants the defendants were misled and failed to press their application for setting aside the ex parte decree, therefore, the defendants respondents should also get an opportunity to press their claim. 9. The learned counsel for the plaintiffs appellants has contended that in a redemption suit only a preliminary decree and a final decree are contemplated under law to end the suit. Once a preliminary decree has been passed the court could not dismiss the plaintiffs suit. It had only jurisdiction to pass final decree in the suit. 9. The learned counsel for the plaintiffs appellants has contended that in a redemption suit only a preliminary decree and a final decree are contemplated under law to end the suit. Once a preliminary decree has been passed the court could not dismiss the plaintiffs suit. It had only jurisdiction to pass final decree in the suit. Therefore, the order of dismissal of the plaintiffs suit on 24-2-1967 is illegal, without jurisdiction and without affording any opportunity to the plaintiffs to explain the situation why, the money was not deposited within time. It has been pressed before me on behalf of the plaintiffs appellants that the order of dismissal relating to the plaintiff's suit on 24-2-1967 should be ignored altogether and the plaintiffs application for preparation of the final decree should be allowed. 10. In AIR 1924 PC 198 , Laxmi Narayan Marwary v. Bal Mukund Marwary their Lordships of the Privy Council have observed as below : "The subordinate Judge accordingly fixed a day for hearing the parties and gave them notice. But when the day come neither the plaintiff nor his pleader appeared. The defendants, or some of them, were represented, but took no steps, and the Judge after waiting all day, made the following order : "5-11-19. I have been waiting for plaintiff and his pleaders till 4.20 p.m., but no one appeared on repeated calls. The defendant is present. The suit is dismissed for want of further prosecution." 11. The aforesaid order has been described as an unfortunate order by their Lordships of the Privy Council. In AIR 1927 All 439, Chandra Shekhar v. Amir Begum a Division Bench of this Court following the observations quoted above, made by the their Lordships of the Privy Council, has made the following observation in a mortgage suit. "After a decree had once been made in a suit, the suit cannot be dismissed unless that decree was reversed or varied on appeal. The parties on the taking of the decree acquire rights or incur liabilities which are fixed and they are entitled to apply to have it in force". 12. In AIR 1934 PC 205 , Raghunath Singh v. Mst. Hansraj Kunwar their Lordships of the Privy Council have indicated as below : "The old decree for some unexplained reason departed from the form required by the Act. 12. In AIR 1934 PC 205 , Raghunath Singh v. Mst. Hansraj Kunwar their Lordships of the Privy Council have indicated as below : "The old decree for some unexplained reason departed from the form required by the Act. It simply provided that in case of default by the plaintiff in payment his case will stand dismissed." "It was contended by the appellant that these words read in the light of Section 92 were to be construed as meaning that the plaintiff was to be debarred of all rights to redeem, and that the old decree accordingly was an order of a court extinguishing the right to redeem within the meaning of the Proviso to Section 60." "Their Lordships are of opinion that unless constrained by authority they ought not to hold. The right to redeem is a right conferred upon the mortgagor by enactment, of which he can only be deprived by means and in manner enacted for that purpose, and strictly complied with. In the present case only basis for the claim that the right to redeem has been extinguished in Section 60, but in their Lordships, view the old decree cannot properly be construed as doing that which it does not purport to do, viz., as extinguishing the right to redeem." 13. Similar observations have been made in AIR 1946 Pat 99 and in AIR 1954 Mys 118, Rudrappa v. Puttalakshamma these two cases have also indicated that a preliminary decree in a suit for redemption of a usufructuary mortgage may under clause (c)(i) of R. 7(1) of O. 34, of the Civil Procedure Code fix a time for payment of the amount declared due under the decree. But default in making the payment of the amount declared under the decree within the time fixed does not operate to debar the plaintiff-mortgagor from all right to redeem the mortgaged property." 14. In AIR 1953 All 503 , Loknath Misir v. Smt. Daulta Kuer a learned single Judge of this Court has observed in para. 4 as below : "...........Even in case where the penalty of foreclosure is rightly imposed, e.g. in the case of mortgages by conditional sale, it is not the preliminary decree itself which extinguishes the right of redemption finally. Even under the law as it stood prior to the amendment, a final decree had to be passed under 0. 4 as below : "...........Even in case where the penalty of foreclosure is rightly imposed, e.g. in the case of mortgages by conditional sale, it is not the preliminary decree itself which extinguishes the right of redemption finally. Even under the law as it stood prior to the amendment, a final decree had to be passed under 0. 34, R. 8, before the right to red em could be lost. The preliminary decree simply indicated what consequences would follow in the event of non-payment of the mortgage money. But those consequences did not take effect automatically on default of payment within the prescribed time. The passing of the final decree was a condition precedent to the coming into existence of those consequences. Had it been the intention of law to let those consequences follow automatically, it would have been unnecessary to enact Rule 8, Order 34 which provides for the preparation of the final decree. I am, therefore, of the opinion that even in cases where the Court could legitimately include a clause in the preliminary decree to the effect that in case of non-payment of the mortgage- money by the depositor the right to redeem would be lost, such right - could not be extinguished unless the final decree was passed. Much less such a right could be lost by a preliminary decree in which this clause was improperly include." 15. Placing reliance upon the above observation the learned counsel for the plaintiffs-appellants has contended before me that the order of dismissal of the plaintiff's suit on 24-2-1967 should be ignored altogether and the plaintiff's application for preparation of final decree should be allowed outright in the facts and circumstances of the present case. 16. I have difficulty in accepting the contention of the learned counsel for the plaintiffs appellants in this regard. In AIR 1933 All 157 , Behari Pandey v. Ramanand Pandey, a Division Bench of this Court dealing with similar facts has observed as below at page 158 2nd Col. : ".........The decree says in so many words that it is a preliminary decree under O. 34, R. 7, Civil P. C., and in further adding that "on failure their suit shall stand dismissed with costs" we do not think that the Court meant that without any further order of the Court the suit should stand automatically dismissed. : ".........The decree says in so many words that it is a preliminary decree under O. 34, R. 7, Civil P. C., and in further adding that "on failure their suit shall stand dismissed with costs" we do not think that the Court meant that without any further order of the Court the suit should stand automatically dismissed. All it meant was that on failure of the mortgagor to deposit the mortgage money within the time allowed for redemption, it would be open to the mortgagee to apply for dismissal of the suit, and that the order of dismissal, if passed, would be embodied in a final decree which would conclude the suit. In this view, it was open to the Court of first instance to grant an extension of time to the mortgagor under O. 34, R. 8, proviso, or S. 148, Civil P. C. We therefore uphold the decree of the Court below, though on different grounds. This appeal is dismissed with costs." 17. In the present case the order of dismissal of the plaintiffs' suit on 24-2-1967 is only due to the circumstance that the plaintiff had failed to deposit the amount due within time allowed in the preliminary decree. The aforesaid order dated 24-2-1967 was passed not on the application of the defendant mortgagee and without hearing the plaintiff, appellants as to why the requisite amount was not deposited within time, therefore, I think that the order of dismissal of the suit was bad in law. But, I am unable to accept the contention of the learned counsel for the plaintiffs appellants that the aforesaid order should be ignored altogether treating it void, illegal and in contravention of the principles of natural justice. Tome it appears that it was proper for the plaintiffs appellants to have prayed for recalling the order of dismissal of the plaintiffs' suit on 24-2-1967 on the ground that it was passed behind the back of. the plaintiffs appellants in a routine business and not on the application of the defendants respondents. According to the case reported in AIR 1933 All 157 one can infer that in concluding the suit. Therefore, I am unable to hold that the order dated 24-2-1967 dismissing the plaintiffs' suit should be altogether ignored in the facts and circumstances of the present case. According to the case reported in AIR 1933 All 157 one can infer that in concluding the suit. Therefore, I am unable to hold that the order dated 24-2-1967 dismissing the plaintiffs' suit should be altogether ignored in the facts and circumstances of the present case. Since I have indicated above that the order of dismissal of the suit on 24-2-1967 was passed without affording an opportunity to the plaintiffs appellants, therefore, it was bad in law, I think it proper to direct the plaintiffs appellants to make proper prayer for setting aside that order to avoid any technicality. 18. Despite dismissal of the plaintiffs' suit of the year 1966 on 24-2-1967 in the second suit filed by the plaintiffs appellants it has been indicated that the plaintiffs could pray for extension of time and the rights of the mortgagor and the mortgagee would be governed by the preliminary decree as is evident from the judgment of the learned Munsif dated 28-2-1967 in Original Suit No. 326 of 1967 between the parties. 19. It appears that while dismissing the plaintiffs' application for preparation of final decree on 24-2-1973 the learned Munsif has failed to take note of the observations made in the second suit filed by the plaintiffs which was dismissed by the learned Munsif on the ground that the preliminary decree dated 17-1-1967 was operative in the facts and circumstances of the case. The learned Munsif has also not realised the mistake of the Court in dismissing the plaintiffs' Original Suit of the year 1966 on 24-2-1967 without calling upon the plaintiffs to explain why the amount due declared in the ex parte decree was not deposited within time. Since the mistake is of the Court in passing the order dated 24-2-1967 and the parties have been misled due to the aforesaid order dated 24-2-1967, I think it proper to allow the plaintiffs appellants to move the Court for rectifying its mistake and to consider the claims of the parties strictly in accordance with law. 20. At this stage it is also proper to mention the ruling reported in AIR 1928 All 480 , Narsingh Prasad Singh v. Pratap Singh where in a Division Bench of this Court has indicated that the Court under Order 34, Rule 8, C.P.C. can extend time for payment. 20. At this stage it is also proper to mention the ruling reported in AIR 1928 All 480 , Narsingh Prasad Singh v. Pratap Singh where in a Division Bench of this Court has indicated that the Court under Order 34, Rule 8, C.P.C. can extend time for payment. The principle o f law laid down therein can be extended to the case of usufructuary mortgages also where a Court declares amount due to be deposited within time allowed. Extension of time allowed in the preliminary decree in a case of usufructuary mortgage can also be allowed in appropriate cases. The learned Munsif does not appear to have followed the correct law in dismissing the plaintiffs' application through his order dated 24-2-1973. 21. The appellate Court in its order dated 17-8-1973 is under the impression that the ex parte decree in favour of the plaintiffs appellants was a conditional decree, therefore, the time could not be extended and the trial Court was justified in rejecting the plaintiffs' application in the facts and circumstances of the present case. 22. In 1972 All WR (HC) 1 : AIR 1972 All 246 , Gobardhan Singh v. Barsati, a Full Bench of this Court has indicated in para 7 of its judgment as below : "..........In our opinion, in view of the decision of the Supreme Court, the decision of the Division Bench of this. Court in Gaya Din v. Lalta Prasad, AIR 1936 All 477 (supra) is no longer good law. Even in case where an order is made by the Court for doing a thing within a particular time and the order further provides that the application, suit or appeal shall stand dismissed if the thing is not done within the time fixed, the Court has diction, if sufficient cause is made out, to extend the time even when the application or ex -extension time is made after the expiry of the time fixed. It is not the application for grant of further time, whether made before or after the expiry of the time granted, which confers jurisdiction on the Court. The Court possesses the jurisdiction under Section 148, C.P.C. to enlarge the time and the application merely invokes that jurisdiction." 23. It is not the application for grant of further time, whether made before or after the expiry of the time granted, which confers jurisdiction on the Court. The Court possesses the jurisdiction under Section 148, C.P.C. to enlarge the time and the application merely invokes that jurisdiction." 23. In view of the above observation of the Full Bench I find that the appellate Court has acted illegally in confirming the judgment of the trial Court on the ground that extension of time could not be granted as the ex parte decree was a conditional one. 24. It is noteworthy that an objection was raised before the lower appellate Court that the appeal against the order of the trial Court was not maintainable and while upholding the objection the appellate Court has expressed itself in the last but one paragraph of the judgment as below : "The appellants have also moved an application that the present appeal may be treated as regular appeal. However, even if the present appeal is treated as a regular appeal, it would be of no help to the appellants for the reason already discussed above." 25. If the appellate Court had converted the misc. appeal into regular appeal by allowing the application moved on behalf of the plaintiffs appellants there would have been no difficulty in holding that the second appeal filed by the plaintiffs appellants is entertainable by this Court. Since the impugned order of the appellate Court has proceeded on the ground that even if the misc. appeal before it was treated as regular appeal it would not have brought any change in the conclusion arrived at by the appellate Court, I think that the appellate Court was not right in this regard. I have already indicated that on merits the conclusion arrived at by the appellate Court was wholly illegal and untenable as well as against the observations made by a Full Bench of this Court in 1972 All WR (HC) 1 : ( AIR 1972 All 246 ). 26. Since the impugned judgment of the trial Court and that of the lower appellate Court suffer from illegalities and material irregularities indicated above, I think that the judgments are amenable to interference in revisional jurisdiction of this Court as well. The powers of this Court in Second Appeal are wider than the powers enjoyed in revisional jurisdiction. 26. Since the impugned judgment of the trial Court and that of the lower appellate Court suffer from illegalities and material irregularities indicated above, I think that the judgments are amenable to interference in revisional jurisdiction of this Court as well. The powers of this Court in Second Appeal are wider than the powers enjoyed in revisional jurisdiction. Therefore, the impugned orders of the Courts below can be' set aside in second appeal. 27. Since the impugned judgment of the first appellate Court can be characterised as a judgment in regular appeal being a composite order dealing with misc. appeal as well as regular appeal, I think the above noted second appeal would be entertainable by this Court in the facts and circumstances of the present case. Even if second appeal is not maintainable the impugned judgments of the Courts below are amenable to interference in revisional jurisdiction by this Court, I think that the ends of justice would be met if the impugned judgments are set aside. 28. In the result, for foregoing discussions this second appeal is allowed and the judgments of the Courts below are set aside and the case is sent back to the trial Court for decision of the claims of the parties. The plaintiffs appellants are granted an opportunity to pray below the trial Court for setting aside the order dated 24-2-1967 and the trial Court is directed to deal with the claim of the parties strictly in accordance with law and the observations made above in the light of the rulings mentioned above. The trial Court shall also entertain the application for setting aside the ex parte decree dated 17-1-1967 if the respondents move a fresh application for that purpose. The trial Court would not indulge into technicalities in dealing with the application of the defendants for setting aside the ex parte decree in the facts and circumstances of the present case because the defendants respondents were misled due to the dismissal of the plaintiffs' suit on 24-2-1967. The trial Court would also examine the worth of the order dated 24-2-1967 in the light of the observations made above and would recall that order in case of necessity. Parties are directed to bear their own costs. 29. The trial Court would also examine the worth of the order dated 24-2-1967 in the light of the observations made above and would recall that order in case of necessity. Parties are directed to bear their own costs. 29. Office is directed to send the record of the Courts below forthwith and the trial Court shall decide the claims of the parties expeditiously as.&he suit is of the year 1966.