Ramkhelawan Choudhuri vs Dunialal Chaudhuri and Others

James, J.—In this case an application was made to set aside an ex parte decree of the Small Cause Court Judge of Darbhanga. By Section 17, Provincial Small Cause Courts Act, the applicant is obliged at the time of presenting his application either to deposit in Court the amount due under the decree or to give security to the satisfaction of the Court for the performance of the decree. A draft security bond hypothecating Immovable property was tendered to the Court; and after the Nazir had reported that the security was sufficient the bond was duly executed by the applicant and filed in Court within the period of limitation.

The applicant should then have registered the bond, but it was not registered and it has not been registered up to this time. The Small Cause Court Judge treating the security as sufficient proceeded to hear the application which was ultimately allowed.

Mr. L.K. Jha on behalf of the decree-holder in the suit argues that the Small Cause Court Judge had no jurisdiction to entertain the application under Order 9, Rule 13 until security had been furnished; and since the unregistered bond could not be regarded as security within the meaning of Section 17, Small Cause Courts Act, the Judge acted throughout without jurisdiction and his order should be set aside. In Jayappa Lokappa Narsinganawar Vs. Shivangouda Dyamangouda Patil, it was held that a security bond executed in favour of the Court in compliance with an order made under Order 41, Rule 5 did not require registration; but that view has not been adopted in this Court; nor (so far as I know) in any other High Court in India.

In the Madras High Court in N. Samayya v. T. Subbayya (1908) 31 Mad 330 it was held that a bond of this kind was invalid and would not affect the property hypothecated unless it had been registered. Similar views have been taken in other High Courts. In Allahabad in Badlu Singh Vs. Panthu Singh, an unregistered mortgage bond had been presented in time, but it was held that the bond was invalid, that the applicant had failed to comply with the requirements of the law, and that the order of the Small Cause Court Judge restoring the suit must therefore be set aside as made without jurisdiction.

In Tarapada Ghosh v. Jagat Mohini Dasi AIR 1917 Cal 195 the applicant had filed an unregistered security bond which was accepted by the Small Cause Court Judge who proceeded to hear the application and set the decree aside. A Division Bench of the Calcutta High Court held that since the security bond had not been registered, it could not be treated as security and that since the requirements of Section 17 were mandatory, (a proposition, the learned Judge said, which could not be disputed), the Judge had no jurisdiction to set aside the decree. His order setting it aside was cancelled and the ex parte decree was restored.

The same view has been taken in this Court, and a number of cases have been cited by Mr. L.K. Jha of which I need only mention Bishun Deyal Thakur v. Sheo Tahal Sahu (1920) 62 IC 108, where an unregistered bond had been taken as security and the ex parte decree bad been set aside. It was held in this Court that the unregistered bond was no security at all, and that the Small Cause Court Judge had no jurisdiction to order a retrial.

Mr. Anand Prasad on behalf of the opposite party argues that there has been some modification in this Court of the rule that the security must be deposited in Court within the period of limitation fixed for the application under Order 9, Rule 13, by the decision in Rajeshwari Prasad Singh Vs. Brahmanand Lal and Another, .

In that case a duly executed bond was filed within time and the applicant was permitted to register it subsequently. Khaja Mohamad Noor, J., remarked that the filing of the unregistered security bond was efficient compliance with the law provided that the delay in getting it registered was not due to any fault of the applicant. In that case the Small Cause Court Judge had deferred passing orders on the sufficiency of the security for some time; but the bond was registered within the time allowed by law for the registration of duly executed documents. It was not held that the filing of a duly executed bond was sufficient without its registration being procured by the applicant who desired that the ex parte decree should be set aside. Mr. Anand Prasad also draws attention to the decision in Gedimaldharam Das v. Hunamal Sedhu Ram AIR 1931 Lah 332 wherein a Bench of three Judges of the Lahore High Court held the provision contained in Section 17, Provincial Small Cause Courts Act, was directory and not mandatory; and that it was open to the Court in appropriate cases to extend the time within which the deposit was to be made or security furnished.

It is to be observed however that in that case one of the Judges remarked that the view of the other High Courts, that the tender of security must be a condition precedent to the making of an application for setting aside the decree would have been adopted by him, if he had not considered himself bound by the decisions of the Punjab Chief Court and of the Lahore High Court.

The extent to which the view of the majority of the Judges in that case is accepted in this Court is apparent in Rajeshwari Prasad Singh Vs. Brahmanand Lal and Another, which has already been discussed. Mr. Anand Prasad also referred to the case of Kiran Koomar Banerji Vs. Baij Nath . There Sulaiman, Ag. C.J., held that the deposit in Court of a receipt by a Bank for a fixed deposit without any security bond hypothecating its amount, though it was not adequate security, was some security; and it could not be said that the applicant had failed to furnish security and he should be given a fresh opportunity to furnish proper security.

But it is to be observed, that although the deposit of the receipt in Court may not have operated, as Sulaiman, Ag. C.J., pointed out, to prevent attachment by other creditors and so was an imperfect security, the applicant could not when he deposited the receipt in Court obtain a refund of the fixed deposit for himself, and no defence would have been open to him in a suit on the part of the decree-holder for recovery of this amount. The position is different when what is deposited is an unregistered security bond hypothecating immovable property, on which if the decree-holder attempted to sue, his suit would be dismissed at once on the ground that the bond was not registered.

I am bound by the precedents established in this Court in Bishun Deyal''s case (1920) 62 IC 108 and the decision of this Court on which that decision is based, which is in accordance with the view of the High Courts of Calcutta, Allahabad and Madras. I am therefore obliged to order that the Small Cause Court Judge''s order of the 24th June must be set aside and the ex parte decree must be restored with costs. The petitioner is entitled to his coats. Hearing fee one gold mohur.