Kalisetti Penchalu Setti vs Potireddi Subbareddi

Alfred Henry Lionel Leach, C.J.—On the 27th September, 1939, the respondent obtained an ex parte decree against the petitioner in a

small cause suit. On the 31st December 1941, the respondent, in proceedings instituted by him for the execution of his decree, obtained an order

attaching fifteen head of cattle belonging to the petitioner. It is the petitioner''s case that he only came to know of the decree which had been

passed against him when his cattle were seized. They were released on security being furnished for their production when called upon.

Article 164 of the Limitation Act provides that the period of limitation for an application to set aside a decree passed ex parte shall be thirty

days from the date of the decree, or, where the summons was not duly served, when the applicant has knowledge of the decree. Section 17 of the

Provincial Small Cause Courts Act states that an applicant for an order to set aside a decree passed ex parte shall at the time of presenting his

application, either deposit in 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.

In V.M. Assan Mahomed Sahib Vs. M.E. Rahiman Sahib, , a Full Bench of this Court held that the provisions of Section 17 are mandatory but

there is sufficient compliance with the section if the deposit of the decretal amount is made or security given within the period prescribed by the law

of limitation for applications under the section although the deposit or the security did not accompany the application itself.

On the 15th January, 1942, the petitioner filed an application for an order setting aside the ex parte decree and at the same time applied for

leave to furnish security. On the same day he submitted to the Court a draft bond. On the 27th January, 1942, the Court passed an order

permitting security to be furnished in the terms of the bond and four days later the petitioner withdrew the draft bond from Court in order that a fair

copy could be made and the bond executed. A bond in the same terms was drawn up on a stamped paper and executed on the 4th February,

1942. It was registered the next day and presented to the Court on the 7th February.

When the petitioner''s application for an order setting aside the ex parte decree came before the Court, the respondent took the objection that

the application was not maintainable because security had not been furnished within thirty days of the 31st December, 1941, the date when the

petitioner says he became aware of the ex parte decree. The respondent relied on the decisions of this Court in Balakrishna Iyer v. Pichamuthu

Pillai (1921) 15 L.W. 186 and Puthiottil Chathiyelan Kanna Kurup Vs. Mayimmoli Raman Nayar, . In the former of these cases, Ramesam, J.,

held that the mere filing of a draft bond was not sufficient compliance with the provisions of Section 17 of the Provincial Small Cause Courts Act.

He pointed out that the draft security bond was a mere piece of paper and it could not have the effect of a security bond duly executed and

registered which alone could be enforced. King, J., followed this decision in Puthiottil Chathiyelan Kanna Kurup Vs. Mayimmoli Raman Nayar, ,

where the facts were similar but in the course of the judgment he drew attention to the fact that two judges of the Court sitting alone had in

applications under Order 41, Rule 10 of the CPC construed the words "" furnish security "" as equivalent to "" tender security."" It is unnecessary for

the Court in this case to consider whether that opinion is open to objection because here we are not dealing with an application under the CPC but

with an application filed u/s 17 of the Provincial Small Cause Courts Act, and the Court can only have regard to the wording in that section. We

are in full agreement with the interpretation placed upon it by Ramesam, J. The result is, that the petition fails and must be dismissed with costs.