Sharfuddin Ahmed, J.
1. The question that falls for determination to this C. R. P. is, whether the filing of a draft bond along with an application for setting aside the ex parte decree made in a samll cause suit is sufficient compliance with the proviso to Section 17 of the Small Cause Courts Act?
2. It appears that a decree was passed ex parte against the first defendant-petitioner herein on 22-8-1960. The ground urged for non-appearance was that a sister-in-law of the petitioner was sick, and as such he could not attend the Court. Along with the petition filed to set aside the ex parte decree, the petitioner submitted a draft bond, offering security in a sum of Rs. 500/-, i.e., for more than the decretal amount and the costs. Thereupon, the Court passed an order to test the security. Notices were also ordered to the other side, and the plaintiff-respondent filed objections on 16-12-1960. The main objection was that the property was not sufficient to meet the requirements of the decree. The matter was posted *or hearing, but no orders seem to have been passed eitheraccepting or rejecting the security. The application for setting aside the ex parte decree came up for nearing before the lower court and it was urged before it that as no previous application was filed in compliance with the provisions of Section 17, the petition was not maintainable.
3. The learned Mtinsif held that as no prior application for obtaining a direction was filed, there has not been sufficient compliance with the provisions of Section 17. In that view, he dismissed the petition. The revision petition is- directed against this order.
4. The learned counsel for the petitioner contends that the draft bond was filed on the same date as the application to set aside the ex parte decree. Thereupon, an order was made for testing the' security. The Act does not contemplate filing of a written application prior to the filing of the application for setting aside the ex parte decree. The relevant provision of Section 17 is as under;
'Provided that an applicant for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance, of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed.'
It Is conceded that the Act does not contemplate, filing of a written application for furnishing security in lieu of the deposit of the amount in the Court. The application may be oral, and such seems to be the conclusion of the ' lower court in para 6 of the judgment where the learned Munsif has observed thus:
'So, under such circumstance, there may be implication that a previous application was made orally or in writing by the applicant for permitting him to offer security instead of making a cash deposit of the amount of the decree which he seeks to be set aside. Under such circumstances, the requirements of the proviso to Section 17 of the Provincial Small Cause Courts Act can be held to have been complied with.'
If this was the conclusion of the learned Munsif, I think he should have allowed the petition. But, if he has merely reproduced the arguments of the counsel for the petitioner it would warrant the inference that no such application was made even orally to the Court for allowing the petitioner to offer security instead of malting a cash deposit. However, from the fact that the draft bond was filed on the same day along with the application to set aside the decree and an order to test the draft bond was made, I am inclined to hold that the Court had virtually allowed the petitioner to furnish security in lieu of depositing the. amount in cash. Otherwise, there was no meaning in directing the draft security bond to be tested. It might have been on the oral application of the party, of which there is no record either in favour of the petitioner or against him. But the direction to test the security is a clear Indication of the fact that the petitioner has been allowed to furnish security subject to its adequacy, instead of depositing the amount in cash. No other interpretation can be placed on the said direction. Therefore, the provisions of Section 17 seem to have been complied with. The fact that subsequent to the testing and filing of objections by the other side no order was made on the draft security bond either accepting or rejecting it, should not be construed against the petitioner, for it was the duty of the Court to pass the necessary order in that behalf. I am, therefore, inclined to hold that the order made by the lower court rejecting the application for setting aside the ex parte decree is not sustainable.
5. The revision petition is allowed, setting aside theorder of the lower Court, and directing it to test, the security and proceed with the disposal of the petition onmerits. Costs to abide the result.