Kawleshwar Lal vs Satya Brata Banarji and Another

Sen, J.—The petitioner is Defendant No. 2 in a suit instituted before the Small Cause Court Judge of Arrah for recovery of a sum of Rs. 459 principal with interest.

On the 15th of December 1924 the petitioner filed his written statement stating that he had no concern whatsoever with the transaction referred to in the plaint and denying all liability on that account. On the same day the case was decreed ex parte.

On the 16th December 1924 the petitioner made an application under Order 9, Section 13 of the Civil. P.C. for setting aside the ex parte decree purporting to show sufficient cause for his non-appearance at the time when the suit came on for hearing. On the 17th December 1924 the learned Subordinate Judge directed the petitioner to file security to the extent of the decretal amount by the 20th December 1924.

It appears that on the 19th December 1924, the petitioner filed a draft security bond for approval by the Court undertaking to register it after such approval. On the 20th the Court passed an order dismissing the application on the ground that the petition was not, as if should have been, accompanied by a deposit or security.

Now the dismissal of the application under Order 9, Rule 13 was obviously in accordance with Section 17 of the Provincial Small Cause Courts Act which lays down the procedure for a cheap and expeditious disposal of petty claims. It provides that.

An applicant for an order to set aside a 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 security to the satisfaction of the Court for the performance of the decree or compliance with the judgment as the Court might direct.

In other words such an application would be deemed incompetent unless accompanied by a deposit of the decretal amount in Court or by security sufficient to the satisfaction of the Court for the performance of the decree.

It is contended by the learned vakil appearing for the petitioner that inasmuch as the period of limitation for presenting such application had not as yet expired it was open to him to present his application supported by proper security at any time prior to the 14th of January, the date when such period would have expired. The view is supported by the decision in the case of Jeun Muchi v. Budhiram Muchi [1904] 32 Cal. 339 and Assan Mahomed v. Rahim Sahib [1920] 43 Mad. 579. Both these cases lay down that:

Although an application made without compliance with the provisions of Section 17 of the Provincial Small Cause Courts Act is to be deemed incompetent yet a subsequent application made within the period of limitation with proper observance of the provisions of that section would be competent and should be entertained.

Now, in this case what happened was that no such application was made afterwards. The application in this case, whether deemed to have been filed on the 16th Dumber or the 20th of December, was obviously not competent, as there was no security before the Courts but only a draft security and, unfortunately, no attempt was made subsequently to make an application supported by a deposit of the decretal amount or by a proper security.

The facts of the present case are, therefore, clearly distinguishable from those of the cases above mentioned in which an application with proper security was made within the statutory period of limitation.

In the circumstances this application must be dismissed with costs.