R. P. L. Shrivastava Lalta Prasad vs Ghisoolal

Sathaye, J.C.

This is defendant-applicant''s revision petition against the order dated 18-12-1954 in Misc. Civil Case No. 41 of the Subordinate Judge (Small Cause Court) Bhopal rejecting his application for setting aside an ex parte decree passed against him in Small Cause Suit No. 166 of 1954.

The facts of the case are simple. On 14-9-1954, an ex parte decree was passed against the applicant in favour of the non-applicant. On 16-9-1954 he filed an application for setting aside the ex parte decree and also another application for permission to furnish security for the purpose of the decree. The learned Judge on the same date allowed the application and the applicant furnished a security bond on 17-9-1954 and on this date the Judge admitted the application for setting aside the decree and issued notice to the non-applicant to show cause against it.

On 18-12-1954, however, without going into the merits of the application the Judge held that the provisions of the proviso u/s 17, Provincial Small Cause Courts Act were not complied with as the security had not accompanied the application for setting aside the ex parte decree and dismissed the application on this ground alone. This order is challenged.

There is no doubt that the provisions of the proviso u/s 17 are mandatory since the amendment of 1935 but, the question is whether in this case they are not complied with. It is sufficient compliance if when the application under O. 9 R. 13, Civil P. C. is taken notice of, the applicant has furnished the requisite security or deposited the requisite amount within the period of limitation of 30 days even if it did not accompany such application.

A large number of decisions may be cited in support of this view, a few of which are:

Ghinoo Chaudhuri Vs. Ramjapu Singh, - Ram Dayal Vs. Bhagwan Das, - Tarachand Hirachand Porwal Vs. Durappa Tavanappa Patravali, - ''Sri Newas v. Durga Prasad'', AIR 1947 All 125 (D), the last being applicable to the present case with all force.

The decision in - AIR 1948 41 (Oudh) cited in opposition is liable to be distinguished as in that case though both the applications under Order 9 Rule 13 and the application for permission to furnish security were filed within the period of limitation still the security was actually furnished after that period without the action of the Court being responsible for the delay.

The view taken by the learned Judge is too strict according to the letter and not the spirit of the Jaw and is erroneous. It is also improper as when the Judge issued the notice to the opponent to show cause the security was already furnished within time. The order of the Judge is thus liable to be set aside.

The revision is allowed with costs against the non-applicant who bears his own and the order in. question is set aside and the record shall go back to the Court concerned for disposal of the application under O. 9, R. 13 according to law. Counsel''s fee will be Rs. 10/- for each side. The parties are directed to appear in the lower Court on 16-5-55.