Mussummat Jamina Bibi vs Seri Chand Bhagai and others

This rule arises out of an order by a Munsif exercising the powers of a Judge of the Small Cause Court, refusing to restore to the file a case which had been dismissed for default. The ground upon which the application of the Plaintiff was refused was that he had not at the time of presenting his application complied with the provisions of sec. 17 of Act IX of 1887, that is, that he had not deposited in Court the amount due from him under the decree, or given security to the satisfaction of the Court for the performance of the decree or compliance with the judgment. The Munsif has explained, that, as the case was dismissed, not on the original date fixed for its hearing, but on the adjournment date, it was dismissed under the provisions of sec. 157 and not under sec. 103 of the Code of Civil Procedure; and that therefore the remedy of the Plaintiff was by way of review of judgment under sec. 623 of the Code. The Munsif refers to the case of Sital Hari Banerjee v. Hira Lall Chatterjee I. L. R. 2 Cal. 269. The judgment in that case, however, has been overruled by the decision of a Full Bench of this Court in the case of Tonuda Dobey v. Ram Dhone Singh I. L. R. 23 Cal. 738. But it is contended in support of the order of the Munsif that the term "a decree passed ex parte " in sec. 17 of Act IX of 1887 also includes cases dismissed for default. We think that that contention is not correct. Sec. 17 refers to the CPC and makes certain chapters of that Code applicable to Courts of Small Causes. Amongst the portions of the CPC made applicable to Courts of Small Causes is Chapter VII, "Of the appearance of the parties and the consequence of nonappearances." Both sec. 103 and sec. 108 of the Code are included in that chapter. Sec. 108 is immediately preceded by the heading " Of setting aside decrees ex parte and it provides that in any case in which a decree is passed ex parte against a Defendant, lie may apply to the Court by which the decree was made for an order to set it aside. It is, we think, clear that sec. 17 of Act IX of 1887 must be read with sec. 108 of the Code; and that being so, the term "a decree passed ex parte" referred to in sec. 17 of Act IX of 1887 can only mean a decree passed ex parte, against a defendant within the meaning of sec. 108 of the Code of Civil Procedure.

The rule is made absolute, and the Munsif will be directed to hear the application of the Plaintiff for readmission of the suit to the file of his Court. The costs in this Court will be costs in the cause, we assess the hearing fee at one gold mohur.