Puthiottil Chathiyelan Kanna Kurup vs Mayimmoli Raman Nayar

King, J.—This petition arises out of an application by the petitioner to set aside an ex parte decree passed by the District Munsiff of

Badagara sitting on the small cause side. The procedure in regard to the presentation of such applications is laid down in Section 17 of the

Provincial Small Cause Courts Act. It provides that at the time of the presentation of the application there must be either the deposit of the amount

due under the decree or such security for the performance of the decree as the Court may on a previous application made by the applicant in this

behalf have directed. The facts are that in this case the application was made on the 7th April, 1941, which was four days after the ex parte decree

had been passed. The application was not accompanied by the deposit of the decree amount nor by the offer of any security. On the 9th April,

however, there was a further affidavit in which certain property was offered as security to the Court in connection with the application to set aside

the ex parte decree. The Court ordered notice to the decree-holder and also ordered the property offered as security to be tested. The result of

the test was that the property was found to be sufficient and a report to this effect was received early in July. On the 21st July, however, the

learned District Munsiff rejected the application of the petitioner on, the ground that he had not complied with the provisions of Section 17. It is

against this order that the present revision petition has been filed.

It will be clear from this narrative of what has occurred that the learned District Munsiff was fully justified in saying that the petitioner had not

strictly complied with the provisions of Section 17. This section requires a previous application if the applicant is to be permitted to give security

instead of depositing cash and admittedly no such previous application was filed. It is, however, argued, and argued with some force, that the

practical effect of what the petitioner has done has been within the spirit of the section, and that all that the District Munsiff need have done was to

have regarded the application to set aside the ex parte decree as having been filed not on the 7th April, but for instance on the 10th April, by which

time the District Munsiff himself by ordering the property to be tested had in effect permitted the applicant to give security instead of depositing

cash. This is not a violent legal fiction and in somewhat similar circumstances another legal fiction of the same kind has been resorted to by this

Court in Ramakrishna Nadar and Another Vs. Ponnayya Thirumalai Vandaya Thevar and Others, . followed in a judgment of my own reported in

Uthuman Pillai Tharagan and Others Vs. T. Muhammad Usaf Tharaganar and Others, . There appears also to be some difference of opinion in the

other High Courts as to the precise nature of the provisions of Section 17. In Murari Lal Vs. Mohammad Yasin, . and Mohammad Ramzan Khan

v. Khubi Khan ILR (1937) Lah. 728 : AIR 1938 Lah. 18. it has been held that these provisions are mandatory and that any failure to comply with

them must result in the dismissal of the application. On. the other hand, in Qabul Singh v. Jai Prakash ILR (1930) All. 554. it has been held that a

narrow construction should not be placed upon the provisions.

I might in this case have been inclined to follow the latter view, especially as on the question of limitation there is no possible grievance which the

decree-holder could put forward. But there has been a further argument on behalf of the respondent that in another respect the provisions of the

section have not been complied with, and that is that even though the order of the Court permitting the giving of security may have been rightfully

obtained subsequently to the filing of the application instead of before it, still no security has in fact been given within the thirty days permitted by

limitation for the filing of an application to set aside an ex parte decree. The facts are that a draft bond was put in within the thirty days and that the

filing of a registered bond was postponed by the petitioner until the result of the testing of the draft bond should be made known. In the end as the

petitioner''s application was dismissed no registered bond was filed. It has been held by Ramesam, J., in a decision reported in Balakrishna Aiyar

v. Pichamuthu Pillai (1921) 15 L.W. 186. a decision dealing with the same section of the Act as it then stood in 1922, that it was necessary that a

registered bond should be filed within thirty days and that the mere filing of a draft bond was not sufficient compliance with the provision of the

section requiring the giving of security. It is true that in other cases two learned Judges of this Court have construed the expression ""furnish security

as equivalent to ""tender security"", Jackson, J., in 1927 in a case connected with the furnishing of security, in order to obtain an order of stay and

Happell, J., in C.R.P. No. 1511 of 1938 in a case dealing with Order 41, rule 10, Civil Procedure Code. There may be much to be said for this

point of view, but it seems to me that I ought to follow the authority of Balakrishna Aiyar v. Pichamuthu Pillai (1921) 15 L.W. 186. which deals

directly with this section rather than the other cases which deal only with cognate provisions of law. Logically too it seems to me that the view of

Ramesam, J., is right, because there is in Section 17 an alternative given, and it is quite clear that in no circumstances can there be any deposit of

the decree amount at any time later than thirty days. It seems logical therefore to assume that if the decree amount must be deposited within that

time something effectual must be done within that time in the matter of giving security. If the expression ""give security"" be analysed, it cannot be

seriously argued that the mere production in Court of a piece of paper with a memorandum of property upon it affords either the Court or the

decree-holder any kind of security whatever. In these circumstances I can see no sufficient reason for interfering with the order of the District

Munsiff.

In the result this petition must fail and is dismissed with costs.