Rajeshwari Prasad Singh vs Brahmanand Lal and Another

Mohammad Noor, J.—This application in revision is directed against an order of the Small Cause Court judge of Arrah, refusing to set aside an ex parte decree, passed against the applicant on 2nd October 1931. The application to set it aside was filed on the 8th January 1932, the defendant-applicant''s case being that he came to know of the decree on the 12th December 1931, when he was arrested in execution of that decree. The learned Small Cause Court Judge has rejected the application on two grounds: first that though the service of summons on the defendant-applicant was not proper, the defendant nevertheless had knowledge of the suit and the application not having been filed within thirty days of the decree, it was barred by limitation; and secondly, that the defendant-applicant did not comply with the provisions of Section 17 of the Provincial Small Cause Court Act, inasmuch as he did not furnish security either with the application, or at any rate, before the expiry of the period of limitation for filing the application.

As to the first point, under Article 164, of the Indian Limitation Act, an application to set aside an ex parte decree must be filed within thirty days from the date of the decree or, where the summons has not been duly served, from the date of the applicant''s knowledge of the decree. In the present case the application is obviously not within thirty days of the decree, but as there is a clear finding of the learned Small Cause Court Judge that the summons was not duly served on the applicant, the applicant did come within the second part of the Article, and he was entitled to come within thirty days of his knowledge of the decree. The learned Small Cause Court Judge is in error when he expects the application within thirty days of the knowledge of the suit. The period is to be counted from the date of the knowledge of the decree, and not from the date of the knowledge of the suit. This point need not be persued further as, in my opinion, the decision of the learned Judge is obviously wrong.

The next question is whether the applicant has complied with the provisions of Section 17 of the Provincial Small Cause Courts Act. It appears that along with his application the applicant filed a duly executed security bond. On that day the Court adjourned passing order on that bond, but later ordered an enquiry as to the sufficiency of the security offered, indicating that it was prepared to accept the security of property if it was found to be sufficient; and that it did not insist on cash security. There was a long delay in conducting the enquiry. Ultimately the security was found sufficient and the bond was registered on the 2nd of May 1932, and accepted by the Court. The learned Small Cause Court Judge is in error in thinking that what was filed along with the application on the 8th January 1932, was a draft bond on a plain piece of paper. We have examined the bond ourselves. It was, as I have said, a properly executed security bond on a stamped paper.

The learned Advocate for the opposite-party has however drawn our attention to the fact that on the margin of the bond where the signature of the executant appears, there is a date given "2-5-32" and he suggests that the bond was executed on that day. I am satisfied that this is not so. The bond bears the date "5th January 1932". It was registered on the 2nd May 1932, after the Court on due enquiry accepted it and directed it to be registered. It appears from the order sheet that the document was taken out from the Court for registration and there perhaps at the instance of the officer of the Registration Department the date of execution was to be given and so the date "2-5-32" has been mentioned.

The ink of that date is obviously different from the ink of the execution signature. That a properly executed and attested unregistered security bond was filed along with the application admits of no doubt. Now the question is what is the effect of filing an unregistered security bond of which the registration was not completed till after the period of limitation for filing the application.

Unfortunately there is no case law on this point. It has been held in a large number of cases in Calcutta and in some decisions of several learned Judges of this Court sitting singly that the provisions of Section 17 of the Act are mandatory; that the Courts have no power to extend time for furnishing security; and that security, either cash or in any other form which the Courts approve, must be filed within the period of limitation. With all this, if I may say so, I entirely agree.

As to decisions of this Court, see Ramcharittar Ram v. Hashim Khan AIR 1932 Pat 111 and Bishun Dayal Thakur v. Sheo Tahal Sahu (1921) 62 IC 108. I also respectfully agree with the decision of Sen, J., in Kawleshwar Lal Vs. Satya Brata Banarji and Another, , that filing of a draft security bond is not sufficient compliance with the provisions of Section 17 of the Small Cause Courts Act. But here the question is, whether a duly executed bond (though not registered but subsequently registered) is a sufficient offer of security within the meaning of Section 17 of the Small Cause Courts Act. In my opinion the criterion is this.--Was the security which the party placed in the hands of the Court and which the Court ultimately accepted, sufficient to enforce the obligation upon him? Judged by this test unregistered security bond is, in my opinion, sufficient compliance with the law, provided that the delay in getting it registered is not due to any fault of the applicant himself. In this case the applicant placed himself in the hands of the Court by giving the Court a fully executed bond. Once he did so he could have been compelled to register under the provisions of the Registration Act and the liability of the security bond could have been enforced against him.

It was open to the Court to call upon the applicant to have the document registered then and there; but the Court deferred passing orders till it was satisfied as to the sufficiency of the security and the document was registered within the time allowed by the law for registration of duly executed documents. An applicant who instead of giving security in cash gives it in property, he does so at his own risk. If later on, the security offered is found to be insufficient and the Court rejects it on that ground, the applicant will have to suffer its consequences. But in this case, as I have said a properly executed bond was offered and the Court by its order indicated that it was prepared to accept it provided the security was sufficient. The security was found sufficient and the document was registered. There was in my opinion sufficient compliance with the law. Both the grounds on which the application was rejected by the learned Judge in the Court below fail. I would allow the application, set aside the ex parte decree and direct that the suit be restored to its original order and disposed of according to law.

Agarwala, J.

I entirely agree. With respect to the construction of the phrase "security to the satisfaction of the Court" occurring in the first clause of Section 17 of the Provincial Small Cause Courts Act, I would only add that the word ''security'' is not a word which has been defined either in this Act or in the General Clauses Act. Generally speaking, that word signifies anything that make''s the money more assured in its payment or readily recoverable. In the present case the bond that was tendered as security, and has already been pointed out by my learned brother, was properly executed, stamped and attested, and it was filed within the time allowed by law.

The Court before which it was filed accepted the bond as security and directed the applicant to register it. Unfortunately the application for restoration of the suit subsequently came up for disposal before another Judge who had taken the place of the Judge who had accepted the security, the latter having been transferred, and probably this has brought about the present state of affairs. In my view, the first Judge who dealt with the matter having accepted the bond as security, it was not open to the Court subsequently to say that the security was not to its satisfaction.