Hira Lal vs Ram Kumar and Sons

Harnam Singh, J.—In Small cause Suit No. 652 of 1948 the trial Court decreed the Plaintiff''s suit ex parte with costs on 9-7-1948.

On 10-7-1948, the Defendant applied under, Order 9, Rule 13, Code of Civil Procedure, for the setting aside of the ex parte decree on the ground that he as prevented by sufficient cause from appearing in the trial Court on 9-7-1948. On the same day the Defendant applied that be may be permitted to give such security for the performance of the decree or compliance with the judgment as the Court may direct and that he may not be required to deposit in Court the amount due from him under the decree or in pursuance of judgment. On 13-7-1948, the Defendant deposited the decretal amount in Court.

The Plaintiff resisted the application and on the pleadings of the parties the trial Court fixed following issue: "Is there any sufficient cause set aside the ex parte decree?"

On evidence examined at the trial on 11-12-1948, the trial Court came to the conclusion that the Defendant had been prevented by sufficient cause from appearing in Court on 9-7-1948.

Plaintiff''s Counsel argued in the trial Court that inasmuch as the decretal amount had not been deposited at the time of the filing of the application under Order 9, Rule 13 of the Code the application should be rejected. The trial Court, however, did not allow the argument to be raised and set aside the ex parte decree on payment of Rs. 5 as costs.

From the order passed by the trial Court setting aside the ex parte decree on 11-12-1948, Plaintiff has come up in this Court for the revision of the order u/s 25, Provincial Small Cause Courts Act, 1887, hereinafter referred to as the Act.

No one has appeared in these proceedings on behalf of the Defendant Respondent.

Mr. Bal Raj Tuli, learned, Counsel for the Petitioner, contends that under the proviso to Section 17(1) of the Act the deposit of the decretal Amount is a condition precedent to the entertaining of an application to set aside an ex parte decree. He then contends that this condition as not been satisfied.

The proviso to Section 17(1) of the Act reads:

Provided that an applicant for an order to not aside decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed.

Now, the point raised in this revision is covered by the decisions in Tarachand Hirachand Porwal Vs. Durappa Tavanappa Patravali, and Mohan Lal v. Firm Muni Ram Nand Lal AIR 1946 Lah. 62 : 222 I.C.S.

In Tarachand Hirachand Porwal Vs. Durappa Tavanappa Patravali, Beaumont C.J., said:

In order to comply with the first part of the proviso it is not essential that the deposit should be made at the time of making the application to set aside the decree it is sufficient if the deposit is made within the time allowed by law for setting aside the decree.

To similar effect is the decision in Mohan Lal v. Firm Muni Bam Nand Lal A.I.R 1946 Lah. 62 : 222 I.C.S. In that case Abdur Rahman J., said:

Where after the application u/s 17, security is furnished by the Petitioner within the time during which the application for setting aside the ex parte decree could have been made by him, the provisions of Section 17, have been complied with and the application for setting aside the ex parte decree may be deemed to have been legally presented for the first time on the day when deposit was made.

In the present case the ex parte decree was passed on 9-7-1948. Defendant presented an application to set aside the ex parte decree on 10-7-1948, and deposited the decretal amount in Court on 13-7-1948. Applying the rule laid down in the cases cited, the application for setting aside the ex parte decree may be deemed to have been legally presented for the first time on 13-7-1948. Indeed, the utmost that can be said against the Defendant-applicant is that his application for setting aside the ex parte decree was not a competent application until 13-7-1948, when he deposited the decretal amount in Court. Clearly, the deposit having bean made within limitation the Defendant-applicant has substantially complied with the requirements of the Proviso.

In the result the petition for revision fails and is dismissed.

As no one has appeared for the Defendant-Respondent in these proceedings I make no order as to costs.