1. This is a plaintiff's application in revision under Section 25, Small Cause Courts Act. The applicant instituted a suit for recovery of Rs. 85 being the alleged price of goods supplied on vouchers. The suit was decreed ex parte on 2nd January 1940. On 3rd February 1940, the opposite party applied under Order 9, Rule 13, Civil P. C, to have the ex parte decree set aside, and at the same time he applied for permission to give security other than cash. The application for leave to furnish security other than cash was allowed and the Court accepted the security bond which the applicant offered, and notice was issued in respect 'to the application for setting aside the ex parte decree. On a subsequent date, that is to say on 13th April 1940, for some reason which is not disclosed, the opposite party's counsel, offered to deposit cash. This offer was accepted, time being allowed for the purpose, and cash was deposited on 18th April 1940. On 20th April 1940 the Court allowed the application for setting aside the ex parte decree, and it is against that order that the applicant has come to this Court in revision. The plea taken here is that the provisions of Section 17, Small Cause Courts Act, which are mandatory, were not complied with and therefore the Court had no jurisdiction to entertain the application for setting aside the ex parte decree.
2. Under the provisions of the aforesaid section a person applying for an order to set aside an ex parte decree has two alter, natives. At the time of presenting his application, he must either deposit in Court the amount due from him under the decree or else give such security for the performance of the decree as the Court may, on a previous application made by him in this behalf, have directed. Learned Counsel for the applicant contends that in the ease with which I am dealing, there was no 'previous application' within the meaning of this section and he relies upon a decision of Mulla J. in Murai Lal v. Mohammad Yasin : AIR1939All46 . In that case the defendant applied to have an ex parte decree set aside. He deposited no security in cash, but he attached a security bond to his application, for having the ex parte decree set aside. At p. 1080 the learned Judge observes:
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. 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.
3. That view was dissented from, as being too narrow an interpretation of the section, by Thom C.J. in Qubul Singh v. Jai Prakash : AIR1939All503 but it was approved by a learned Judge of the Oudh Chief Court in Jagan Nath Prasad v. Sukhdo Prasad ('41) 1941 OWN 195. Now it will be observed that in the case with which Mulla J. was dealing there was no application at all for permission to furnish security other than cash, whereas in the case which is now under consideration there was such an application. It would appear that the opposite party filed the two applications simultaneously; that is to say, he filed one application for permission to give security other than cash and another application for having the ex parte decree set aside. The order sheet indicates that the application for permission to file a security bond was first entertained and allowed by the Court, the security bond attached to the application being accepted: and thereafter the Court entertained the application for setting aside the ex parte decree and directed that notice be issued. If the application for permission to file a security bond had first been presented and then, immediately after it had been allowed by the Court, the application for setting aside the ex parte decree had been presented, it could not possibly be denied that the application for permission to file a security bond was not a 'previous application' within the meaning of the proviso to Section 17. In the present case, as I have already said, the two applications were apparently filed simultaneously; but having regard to the fact that the application for permission to furnish security other than cash was first entertained and decided by the Court, (as is clear from the order sheet), I think it may fairly be assumed that the intention of the applicant, when preferring the two applications, was that the application for permission to file a security bond and obtain the Court's direction should first be taken up by the Court, and from this point of view it may, I think, reasonably be regarded as a ' previous application ' such as is contemplated by the section. This being my view, I am of opinion that the provisions of the section were complied with. Even if I had taken the opposite view, I should have been disinclined to interfere in the exercise of my revisional powers under Section 25 of the Act. For the reasons given this application fails and is dismissed with costs.