Munshi Singh vs Bansropan Chamar

Dhavle, J.—This is an application in revision against an order of the Small Cause Court at Jehanabad allowing an application under Order 9, Rule 13 for setting aside an ex parte decree passed in favour of the petitioner. The decree was passed on 21st March 1930 and the application under Order 9, Rule 13 was made on 13th June 1930, it being explained that the applicant only came to know of the ex parte decree against him on 2nd June 1930.

The order of the lower Court allowing the application under Order 9, Rule 13 was assailed in the revisional petition principally on the ground that the opposite party had stated that he came to know of the decree on 1st May 1930. If so, it was obvious that the application for rehearing was barred by time. That ground however has been given up, and the learned advocate for the petitioner has explained how that ground came to be taken by reason of a typographical mistake in the copy of the order of the lower Court that was supplied to him. The application in revision has however been argued on another ground, namely, that the application for an order to set the ex parte decree aside was not accompanied, as under the proviso to Section 17, Small Cause Courts Act, it should have been, by a deposit of the amount due under the decree or security to the satisfaction of the Court for the performance of the decree or compliance with the judgment.

The learned advocate has cited a large number of cases in support of the proposition that the requirements of this proviso are mandatory. Among other cases he has cited a Full Bench decision of the Madras High Court in V.M. Assan Mahomed Sahib v. M.E. Rahim Sahib AIR 1920 Mad 562, a recent decision of the Calcutta High Court in Abdul Sheikh v. Mahammad Ayub AIR 1920 Cal 207 a decision of the Allahabad High Court in Suraj Prasad and Another Vs. Baldeo , and several decisions of this High Court: Ilahi Bakhsh v. Jawinda Mal AIR 1920 Lah 438, Bishun Dayal Thakur v. Sheo Tahal Sahu (1921) 62 IC 108 and Kawleshwar Lal Vs. Satya Brata Banarji and Another, .

The record shows that the decretal amount was only fully deposited on 18th August 1930, and this is clearly out of time on the showing of the opposite-party himself that he came to know of the ex parte decree on 2nd June 1930. As the point taken by the learned advocate for the petitioner was not mentioned in the grounds, I complied with the request of the learned advocate for the opposite party that he should be given time. I have heard him today on the matter that was argued before me by the learned advocate for the petitioner day before yesterday. The learned advocate for the opposite party has endeavoured to show that it is not correct law that the requirements of the proviso to Section 17, Small Cause Courts Act, are mandatory. This contention is opposed to an overwhelming mass of authority as I have already indicated.

He has also cited Sudalaimutha Kudamban v. Andi Reddiar AIR 1922 Mad 186, a decision in which the Full Bench case in V.M. Assan Mahomed Sahib v. M.E. Rahim Sahib AIR 1920 Mad 562, was referred to and the view was adopted that it is open to the Small Cause Court, notwithstanding the language of the proviso to Section 17, Small Cause Courts Act, to extend the time for a deposit under the power conferred on Small Cause Courts in the Madras Presidency by Section 5, Limitation Act. That decision is obviously of little help in the circumstances of the present case. It has not been suggested that there is any rule in this province, as in Madras, making Section 5, Limitation Act, applicable to Small Cause Courts, nor is there anything to show that in giving the opposite party repeated extensions of time, the lower Court thought of exercising any power u/s 5, Limitation Act. Those orders were all passed ex parte, and the petitioner before me is clearly entitled to assail them, with the result that the opposite party is required to support them on good grounds.

The learned advocate for the opposite party has not been able to do anything in this connexion beyond drawing attention to an application filed below by the opposite party on 5th August, saying that he had brought Rs. 30 which he may be allowed to deposit and asking for further time. It is however to be remembered that even on 5th August the time for making the deposit was long past.

It is not necessary in the circumstances to say definitely whether the lower Court had any power u/s 5, Limitation Act, or not, as it is perfectly clear that even if the Court had the power, no reason was made out for the exercise of such power and no reason has been pointed out to me justifying the exercise of such power.

In accordance with the rulings, to which reference has been made, I must therefore hold that the application of the opposite party for an order to set aside the ex parte decree was not made in compliance with the law at all, and that the lower Court exercised its jurisdiction illegally or with material irregularity in entertaining that application.

The rule is therefore made absolute and the order setting aside the ex parte decree and restoring the suit to its original number is set aside. The opposite party must pay to the petitioner the costs of this rule and also the costs of the application under Order 9, Rule 13: hearing fee in this Court, one gold mohur.