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Murari Lal Vs. Mohammad Yasin - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1939All46
AppellantMurari Lal
RespondentMohammad Yasin
Excerpt:
.....9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - i think the applicant's contention is well-founded and must prevail. the provisions of section 17 relating to the filing of security by an applicant for an order to set aside a decree passed ex parte are clearly imperative and it is not within the power of the court to condone any failure on the part of the applicant to carry out those provisions. it is now clearly provided that the applicant must deposit the amount due from him under the decree or in pursuance of the judgment......a certain amount from the opposite party as arrears of rent for a shop, and obtained an ex parte decree on 7th january 1937. on 16th january 1937, the opposite party made an application under order 9, rule 13 for getting that ex parte decree set aside. no cash security for costs was deposited in the court along with that application, nor was any application previously made to the court for permission to file a security bond. a security bond was however attached to the application. the applicant objected on the ground that the opposite party was not entitled to put in that security bond without having previously applied for the court's direction to that effect. that objection was dismissed and the court allowed the application made by the opposite party and set aside the ex parte.....
Judgment:
ORDER

Mulla, J.

1. This is an application in revision under Section 25, Small Cause Courts Act. The applicant here was the plaintiff in the Court below. He brought a suit in the Court of Small Causes at Meerut for recovering a certain amount from the opposite party as arrears of rent for a shop, and obtained an ex parte decree on 7th January 1937. On 16th January 1937, the opposite party made an application under Order 9, Rule 13 for getting that ex parte decree set aside. No cash security for costs was deposited in the Court along with that application, nor was any application previously made to the Court for permission to file a security bond. A security bond was however attached to the application. The applicant objected on the ground that the opposite party was not entitled to put in that security bond without having previously applied for the Court's direction to that effect. That objection was dismissed and the Court allowed the application made by the opposite party and set aside the ex parte decree on payment of Rs. 5 as costs. The applicant then proceeded to make another application for review of that order, but the learned Small Cause Court Judge refused to interfere with his previous order allowing the application and setting aside the ex parte decree. The applicant has now come up in revision against the order of the learned Small Cause Court Judge.

2. The simple argument on behalf of the applicant is that the provisions of Section 17, Provincial Small Cause Courts Act, which has recently been amended by Act 9 of 1935, are mandatory and the lower Court exceeded its jurisdiction in entertaining the opposite party's application in defiance of those mandatory provisions. The relevant portion of Section 17 runs as follows:

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 Court the amount due from Mm 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.

3. The last portion of the above Proviso has been added by Act 9 of 1935. A similar provision contained in Section 17 before the recent amendment ran as follows:

Either deposit in the Court the amount duo from him under the decree or in pursuance of the judgment, or give security to the satisfaction of the Court for the performance of the decree or compliance with the judgment, as the Court may direct.

4. There appears to have been a conflict of authority in interpreting Section 17 of the Act as it stood prior to the recent amendment. In many cases it was held that the provisions were mandatory and if they were not carried out, the Court had no jurisdiction to entertain an application for review of judgment or for an order to set aside a decree passed ex parte. In some cases however, it was held that in the matter of accepting security other than cash filed by the applicant, the Court had ample freedom to exercise its discretion. Now the Legislature seems to have settled that conflict once for all by introducing the amendment to which reference has already been made above. I think the applicant's contention is well-founded and must prevail. The provisions of Section 17 relating to the filing of security by an applicant for an order to set aside a decree passed ex parte are clearly imperative and it is not within the power of the Court to condone any failure on the part of the applicant to carry out those provisions. It is now clearly provided that the applicant must deposit the amount due from him under the decree or in pursuance of the judgment. The only other alternative which is given to him is to make a previous application to the Court to obtain the Court's direction regarding the filing of adequate security. He is not entitled to file a security bond along with his application without having previously obtained the direction of the Court. If he fails to make a previous application to the Court, he cannot later on ask the Court to show any indulgence to him. It is not within the power of the Court now to entertain an application for an order to set aside an ex parte decree where it is not accompanied by a deposit in the Court of the amount due under the decree from the applicant, and no application has been previously made for obtaining the direction of the Court to file a security bond. This interpretation of Section 17 is supported by a decision of the Lahore High Court in Mohammad Ramzan Khan v. Khubi Khan (1938) 25 A.I.R. Lah. 18. The result therefore is that I allow this application in revision with costs and, setting aside the order passed by the learned Small Cause Court Judge allowing the application made by the opposite party under Order 9, Rule 13, Civil P.C., restore the ex parte decree passed in the case.


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