1. A suit in the Court of. Small Causes at Agra, was dismissed for default of appearance by the plaintiff.
2. Along with the order of dismissal was an order that the plaintiff should pay the defendant's costs, amounting to Rs. 18-8-0. Within limitation the plaintiff applied under Order IX, Rule 9, of the Code of Civil Procedure for an order to set the dismissal aside. He satisfied the Judge of the Small Cause Court that there was sufficient cause for his non-appearance, and obtained an order setting aside the dismissal. It does not appear that this order was coupled with any direction that the plaintiff should first pay the costs which had been awarded against him, though such an order would undoubtedly have been within the discretion of the court. The result has been that the defendant has come to this Court in revision, contending that the order setting aside the dismissal was without jurisdiction, because the plaintiff had not first deposited the aforesaid sum of Rs. 18-8-0 or given security in respect of the same. This contention is sufficiently answered by the wording of the proviso to Section 17 of the Provincial Small Cause Courts Act No. IX of 1887. The order dismissing the suit for default was not a decree, vide Section 2, Clause (2) of the Code of Civil Procedure; nor was the application for an order to set the dismissal aside an application for an order to set aside a decree, vide Order IX, Rule 9, of the Code of Civil Procedure; still less was it an application for review of judgment. The proviso in question, therefore, does not apply to this case. The words 'or in pursuance of the judgment' in the said proviso must be read distributively and applied to the words 'for a review of judgment' which precede. I am informed' that this view has been taken by the Calcutta High Court in an unreported case. The point seems to me sufficiently clear on the wording of the statute law. I dismiss this application with costs.