Mithan Lal, J.
1. The only point which requires consideration in this case is. whether after the abolition of the Court of Small Causes, which passed the decree in question, an application for restoration under Order IX Rule 13 could be entertained by the Munsif without any security. Both the Courts below have found that the provisions of Section 17 of the provincial Small Cause CourtsAct being mandatory the decree could not be set aside due to not depositing the money or furnishing security.
2. It appears that the suit was decreed ex parte by the Judge Small Cause Court, Muzaffarnagar, on 2nd June, 1959. It seems the Munsif having the power of Small Cause Court was transferred in July, 1959, and was succeeded by an officer who had no such powers. An application for setting aside the ex parte decree under, Order 9 Rule 13 was made on 12th September, 1959, but neither any money was deposited nor any application for leave to furnish security was given nor any security was given at any stage. This application was rejected by the Munsif who, it appears, had also Small Cause Court powers on the date the application was decided. The appeal was rejected by the district Judge. It is against these Orders that the present application has been filed.
3. It has been contended by Sri K.C. Agarwala that Section 17 prescribes the procedure which is to be followed in Small Cause Court cases and by that section the procedure prescribed in Civil Procedure Code has been made applicable to all Small Cause Court suits. Under section 35 where a Court of Small Causes has been abolished then the proceedings in respect of any case whether before or after the decree can be taken in a Court where such proceedings could be instituted. The contention is that after the abolition of the Court of Small Causes the Munsif had jurisdiction to entertain the application and consequently under the procedure prescribed by the Code no security was necessary to be given. His submission is that Proviso to Section 17 has no application.
4. Learned counsel for the other side has on the other hand contended that the proviso is an exception to the general rule given in Section 17 and it applies to all decrees passed by a Judge small cause court irrespective of the fact whether the application for restoration, is made before, the Judge small cause court or the successor court He has urged that decretal money has to be deposited or security has to be furnished. His further contention is that the expression used in the proviso 'n the court' means the Court which entertained the application under Section 35.
5. I have heard the learned counsel for the parties. Section 35 is an enabling section which has been made for the benefit of the parties to a small cause court matter after the small cause court has been abolished. It only invests the Court with a power, which would otherwise be wanting to hear any Suit or to take cognizance of any proceedings after the Court has been abolished. The purpose of that section is not to convert any decree passed by the Judge small cause Court into a decree of a regular suit. Then) again there is a distinction between the jurisdiction exercised in a case and the power to entertain certain matters arising out of pending cases or arising out of suits which have already been decreed. If a Munsif, therefore, deals with a Small Cause Court decree under Section 35 under his ordinary jurisdiction the decree does not becomea decree of the regular Court. It remains adecree of the small cause court and consequently the proviso to Section 17 would apply. This viewhas been expressed in the case of RamaswamiMuthurian v. Firm of Ki Karu Ram Ki of Vaigainalloor, AIR 1935 Mad 919.
6. To a case like the present where the decree was obtained from the Court of Small Causesand the Court was subsequently abolished andthe application for restoration became entertainable by the Munsif provisions of Section 17 provincial Small Cause Courts Act would apply. Anapplication to set aside, the decree should therefore conform to the procedure laid down in Section 17 of the provincial Small Cause Courts Act.That means along with the application the applicant had to deposit in Court the amount dueunder the decree or he had to furnish a securityfor the performance of the decree as required. Itis not having been done the application was rightly rejected. The revision has no force and is dismissed with costs.
7. Record of the case shall be sent back tothe Court below as early as possible.