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Chigurupalli Suryanarayana Vs. the Amadalavalasa Co-operative Agricultural Industrial Society Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1414 of 1973
Judge
Reported inAIR1975AP196
ActsProvincial Small Cause Courts Act, 1887 - Sections 17(1); Code of Civil Procedure (CPC) , 1908 - Order 9, Rule 13
AppellantChigurupalli Suryanarayana
RespondentThe Amadalavalasa Co-operative Agricultural Industrial Society Ltd.
Appellant AdvocateN.V. Ranganadham, Adv.
Respondent AdvocateK. Srinivasamurthy and ;K. Nagarajarao, Advs.
Excerpt:
.....amount - section 17 (1) of provincial small cause courts act, 1887 - order setting aside ex parte decree challenged - alleged decretal amount not paid - no compulsion of depositing decretal amount alongwith application - suffice if deposited within permissible time limit. (ii) sufficient cause - section 17 (1) of provincial small cause courts act, 1887 and order 9 rule 13 of code of civil procedure, 1908 - setting aside ex parte decree without finding on the question of sufficiency of cause - mandatory requirement under order 9 rule 13 - held, lower court erred in setting aside decree without recording sufficient cause - order setting aside decree not justified. - - he, therefore, contends that as the lowercourt failed to comply with the mandatory provisions of section 17(1)..........of decretal amount should be made along with the application presented for setting aside the ex parte decree; and (2) whether it is not necessary for the court to give a finding on the question of sufficiency of cause for setting aside the ex parte decree under section 17(1) of the act. 3. the learned additional subordinate judge passed ex parte decree on 8-10-1973 against the respondent herein. the respondents filed i. a. no. 52 of 1973 for setting aside the ex parte decree on 16-10-1973. he also applied for challan for rs. 400/- on 18-10-1973 and the challan was given by the court to the respondent. but the respondent did not deposit the amount of rs. 400/- before the order in i. a. 52/73 was passed. he. however, deposited the said amount before the expiry of 30 days from 8-10-1973......
Judgment:
ORDER

Punnayya, J.

1. This revision petition is directed against the order passed by the Additional Subordinate Judge, Srikaku-lam in I. A. No. 52/73 in S. C. 31/73.

2. Two questions of law require consideration in this revision petition. They are: (1) Whether it is necessary under the proviso to Section 17(1) of the Provincial Small Cause Courts Act (hereinafter called 'the Act') that deposit of decretal amount should be made along with the application presented for setting aside the ex parte decree; and (2) whether it is not necessary for the court to give a finding on the question of sufficiency of cause for setting aside the ex parte decree under Section 17(1) of the Act.

3. The learned Additional Subordinate Judge passed ex parte decree on 8-10-1973 against the respondent herein. The respondents filed I. A. No. 52 of 1973 for setting aside the ex parte decree on 16-10-1973. He also applied for challan for Rs. 400/- on 18-10-1973 and the challan was given by the court to the respondent. But the respondent did not deposit the amount of Rs. 400/- before the order in I. A. 52/73 was passed. He. however, deposited the said amount before the expiry of 30 days from 8-10-1973. Taking into consideration the amount deposited by the respondent before the expiry of 30 days from 8-10-1973 the learned Additional Subordinate Judge was of the opinion that there was substantial compliance with the provisions of law. He, therefore, allowed the petition and set aside the ex parte decree.

4. Aggrieved with the said order, the plaintiff in the suit, who was the respondent in I. A. 52/73, filed this revision petition.

5. The learned Counsel for the petitioner contends that the respondent herein has not deposited the decretal amount at the time of presenting his application as required under the proviso to Section 17(1) of the Act. He further contends that the lower Court has not given finding whether there was sufficient cause which prevented the respondent herein from appearing before the lower court on the date when the matter was posted for hearing and such a finding is necessary in view of Section 17(1) of the Act. He, therefore, contends that as the lowerCourt failed to comply with the mandatory provisions of Section 17(1) on both the aspects, the order passed by the lower Court allowing I. A. 52/73 is erroneous and contrary to law. Hence he contends that the revision petition should be allowed and the order passed by the lower Court should be set aside.

6. There is no dispute that the amount of Rs. 400/- was deposited before the expiry of thirty days from 8-10-1973, though the said amount was not deposited at the time when the application was presented. But the learned Counsel for the petitioner contends that it is mandatory under the proviso to Section 17(1) of the Act to deposit the amount along with the application for setting aside the ex parte decree.

7. I do not think that the contention of the learned Counsel for the petitioner is correct.

8. In order to comply with the first part of the proviso to Section 17(1) of the Act, it is not necessary that the deposit should be made at the time of presenting the application for setting aside the ex parte decree. It is sufficient if the deposit is made within the time allowed by law for setting aside the ex parte decree. For this, I gain support from the rulings in Tarachand v. Dau-rappa, AIR 1943 Bom 237 and Hiralal v. Ramkumar and Sons, AIR 1951 Punj (Simla) 230. In both the cases, learned Judges considered the question whether the first part of the proviso to Section 17(1) was not complied with if the deposit was made before the expiry of thirty days, even though it was not deposited at the time of presenting the application for setting aside the ex parte decree. The learned Judges held that if the deposit was made before the expiry of thirty days from the date of the ex parte decree, it should be treated that the first part of the proviso was complied with.

9. Thus there is substantial compliance with the first part of the proviso to Section 17(1) in the case on hand, since the respondent made deposit of the amount of Rs. 400/- before the expiry of thirty days from 8-10-1973 the date of ex parte decree. It is in this view that I hold that the lower court has not committed any error of law, so far as this question is concerned.

10. But I find force in the contention of the learned counsel for the petitioner that the lower court has committed error in setting aside the ex parte decree without giving a finding on the question of sufficiency of cause. Under Section 17(1) of the Act the provisions of Order IX, Rule 13 apply for setting aside the ex parte decree. In such a case, the Court has to give a finding whether there was sufficient cause for setting aside the ex parte decree. The learned subordinate Judge has lost sight of the need to give a finding on the question of sufficiency of cause, which is mandatory under Order IX, Rule 13, Civil Procedure Code before allowing the petition for setting aside the ex parte decree. When the learned Subordinate Judge allowed the petition on the sole ground that the respondent made deposit of Rs. 400/- in compliance with the first part of the proviso to Section 17(1) but without giving a finding on the other requisite of sufficiency of cause which has necessarily to be given in view of the provisions of Section 17(1) of the Act I am to conclude that his order is erroneous so far as this question is concerned and is therefore unsustainable. I, therefore, hold that the revision petition has to be allowed so far as this question is concerned.

11. The revision petition is accordingly allowed and the order of the lower Court is set aside to the extent indicated and the matter is remanded to the lower court for a decision on the question of sufficiency of cause. Costs will abide the decision of the lower court. Order accordingly.


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