K. Perumal Mudaliar vs Ummar Koya

Chandra Reddi, J.—The petitioner herein filed an application on 7-2-1949, to set aside the ex parte decree passed against him on 7-1-

1949 and tendered as security shares of the face value of Rs. 3,000 in the South Indian Bank, Trichur and also deposited a sum of RS. 200 as

required u/s 17, Provincial Small Cause Courts Act. An objection was taken by the plaintiff that shares which were not fully paid up could not be

accepted as security and therefore, there was no compliance with the requirements of Section 17, Provincial Small Cause Courts Act. There,

upon, the petitioner defendant filed an application to excuse delay in furnishing security and deposited along with that application a Sum of Rs.

1,000 to make up the decretal amount. This application to excuse delay was resisted by the plaintiff on the ground that the Court had no

jurisdiction to entertain such an application as Section 5, Limitation Act, is not applicable to the provisions of Section 17, Provincial Small Cause

Courts Act. The Subordinate Judge upholding the objection raised on behalf of the plaintiff, dismissed the petition for excusing delay filed by the

defendant u/s 5, Limitation Act, and relied on a decision in Kalisetti Penchalu Setti Vs. Potireddi Subbareddi, , in support of his view, which I think

has absolutely no bearing on the question for decision in this case. In this civil revision petition the correctness of that case is challenged.

It is urged by the learned counsel for the petitioner that the view of the lower Court that the Court has no jurisdiction to apply Section 5,

Limitation Act, to proceedings u/s 17, Provincial Small Cause Courts Act, is erroneous and is opposed to rulings of this Court. An identical

question arose in Sudalaimuthu Kudumban v. Andi Reddiar, 45 Mad. 628 : (A.I.R. (9) 1922 Mad. 186), and it was laid down by Oldfield and

Venkatasubba Rao JJ., that the delay in making the payment required by the proviso to Section 17 can be excused in an application u/s 5,

Limitation Act. The observations of the learned Judges at p. 632 of the report may be usefully extracted :

Section 5, Limitation Act, having been applied to Order 9, it will be nonetheless applicable to the procedure under that Order, when that

procedure takes place in a Court of Small Causes.

It is then, however, argued that the payment required by the proviso to Section 17(1) must be considered as independent of the petition for setting

aside a decree passed ex parte and that Section 5 cannot be applied to the making of that payment, as justifying the Court in excusing the delay in

making it. The answer is that the payment is directed only in connection with the filing of a petition under Order 9, Rule 18 and is as much an

element required in order to the completeness of such a petition as any other portion of it, for instance, the stamp or verification.

This ruling was followed subsequently by Ramesam J., in Koilpillai Samban v. Sappannimuthu Samban, 44 M. L. J. 247: A. I. R. 1923 Mad.

354), and also by Ananthakrishna Aiyar J., in Ramji Das v. Kumarakalathi Mudali, 61 M. L. J. 710 : AIR 1932 Mad. 142. In the light of these

decisions, it is futile to contend that Section 5, Limitation Act, is not applicable to proceedings u/s 17, Provincial Small Cause Courts Act.

It is contended by Mr. Ramakrishna Aiyar, learned counsel for the respondent, that the decision in Sudalaimuthu Kudumban v. Andi Reddiar,

45 Mad. 628 : A. I. R. 1922 Mad. 186, is not good law, as it runs counter to the principle laid down in the Full Bench decision in Assan

Mahomed Sahib v. Rahiman Sahib, 43 Mad. 579 : A. I. R. 1920 Mad. 562 . There is absolutely no force in this contention and it is ill-founded.

The effect of the Full Bench decision was considered by the learned Judges in Sudalaimuthu Kudumban v. Andi Reddiar, 45 Mad. 628 : A. I. R.

(9) 1922 Mad. 186, and they held that their view was entirely consistent with the tenor of the judgment of the Full Bench. It must be remembered

that the Full Bench did not have to consider the applicability of Section 5, Limitation Act to Section 17, Provincial Small Cause Courts Act. There

the learned Judges were only concerned with the question whether Section 17, Provincial Small Cause Courts Act was mandatory or not and

whether the security deposit made within thirty days though it did not accompany the application for setting aside the ex parte decree under Order

9, Rule 13, Civil P. C., was sufficient compliance with the requirements of Section 17, Provincial Small Cause Courts Act, and they answered both

the questions in the affirmative. It follows that the decision in Sudalaimuthu Kudumban v. Andi Reddiar, 45 Mad. 628 : A. I. R. 1922 Mad. 186,

and the subsequent decisions that followed it are not inconsistent with the principle laid down in the Full Bench and they hold the field.

I must therefore hold that the order of the lower Court is wrong and ought to be set aside. Since the lower Court did not go into the merits of

the application under Order 9, Rule 13, this ought to be remanded for fresh disposal according to law, in the light of the observations made by me

above. The costs of this petition will abide the result of the application in the lower Court.