1. This is an application in revision against an order of a Small Cause Court Judge, dated 19th October 1929, restoring a case which was decreed ex parts.
2. The order of the Court below against which this revision is directed has not been placed upon my paper book, and I direct that a copy of the said order should be placed upon the paper book.
3. It appears that on 31st July an ex parte decree was passed against the defendant. Attempts had been made to effect personal service, but they were evidently infructuous, and in the last instance service by publications in a local newspaper was ordered. Some time in 1929 the defendant applied to the Court below for setting aside the ex parte decree on the ground that he had no notice whatsoever of the suit, and he came to know of the decree only four days back when execution was levied. The application was accompanied by an affidavit and by a surety bond. On 19th October 1929, when this application came for hearing, the learned Judge of the Court below was of the opinion that the security was sufficient for the decretal amount and that the ends of justice required that the case should be disposed of on the merits.
4. As I said in the beginning, the present application in revision is directed against this order, and the points raised are that the provisions of Section 17, Small Cause Courts Act, have not been satisfied and that substituted service in law being sufficient service, the learned Judge had no jurisdiction after three years to set aside the decree. These two points have been developed in argument before me. It is stated that it is necessary to obtain the direction of the Small Cause Court Judge before filing a security bond as to whether such a security bond would be accepted or not, and a failure to obtain such a direction is fatal to the application for setting aside the ex parte decree, and in support of that contention the case of Jhabboo Misir v. Hawaldar Tewari : AIR1929All840 is cited before me. The learned Judges, who decided that case, although they are not agreed on all the points, are undoubtedly agreed upon one thing, viz., that when anything but cash deposit is sought to be put in, the direction of the Court must be obtained previously, and Niamatullah, J , at the end of his judgment says that an omission to obtain such direction is fatal to the success of the application. Upon the basis of this observation it is argued before ma that inasmuch as there was no application for any such direction before the security bond was filed, the Court below had absolutely no jurisdiction to set aside the ex parte decree. On the other hand, it is argued by the opposite party that failure to obtain such a direction does not necessarily oust the jurisdiction of the Court, but the applicant takes the risk of having his application dismissed on that ground alone, but if the Court is not prepared to take that stringent step and considers the security sufficient, the Court has still the jurisdiction to entertain the application. I am inclined to agree with the latter view.
5. It is desirable that the Court's direction should be obtained by a separata application but if it has not been done and if the other provisions of Section 17 been complied with, then the Court's jurisdiction to proceed with the application is not ousted, and I do not think the learned Judges, who decided the abovementioned case, have gone to the extent to which the counsel for the applicant says they have gone. As to the other question, that the substituted service must be deemed to be sufficient,, I am in some difficulty by reason of the indefinite finding of the Court below. The learned Judge says: 'Application supported by affidavit, reasons sufficient.' This would mean that the Court below was satisfied with the reasons given by the defendant and was of the opinion that the case should be restored. He later on says: 'Service on applicant was affected (sic) by publication.' He-does not say whether he deems such service as due service, but the trend of his order shows that he did not consider it as sufficient. He however makes the defendant pay Rs. 5 as costs to the plaintiff which goes to show that the defendant was to blame, and the learned Counsel for the plaintiff argues that this shows that the learned Judge of the Court below considered the service to be not invalid. There is some force in his argument. Both these points (especially the first one) raise questions of some importance, and I think it desirable that they should be decided by a Bench of two Judges.
6. I therefore direct that this case be laid before a Bench of two Judges.
7. This reference to the Full Bench has arisen out of an application made by Ganga Singh, the opposite party to this revision, to set aside an ex parte decree made against him on 30th July 1926, in favour of the applicant before us, Ram Bharose.
8. The application filed on 22nd August 1929 for setting aside the ex parte decree which had been made by a Munsif exercising the powers of a Judge, Small Cause Court, in his Small Cause Court jurisdiction, was accompanied with a security bond furnished by one Sadho-Singh for the sum of Rs. 175 which was large enough to cover the decretal amount. The Judge before whom the application was made directed a notice to issue to the plaintiff, Ram Bharose, on the same day that the application was made. The application was heard on 19th October 1929 and was allowed, subject to payment of Rs. 5 costs to the plaintiff.
9. The petition of revision came before a learned single Judge of this Court. He referred it to a Bench of two Judges, and the learned Judges before whom the matter came eventually referred the case to a Full Bench, in order that the law on two points might be settled.
10. These two points are: (1) relating to the effect of substituted service on an applicant for setting aside an ex parte decree; and (2), what are the rules that a defendant in an ex parte Small Cause Court decree against him must comply with, in order to be able to have the ex parte decree set aside.
11. It appears that when some attempt had been made to serve Ganga Singh with a summons of the suit, the plaintiff applied that a substituted service should be effected as against him. This was done, and the service having been effected the ex parte decree was made.
12. It has been urged on behalf of the applicant before us (the plaintiff) that under Article 161, Schedule 1, Lira. Act, 30 days are allowed for making an application by a defendant for setting aside an ex parte decree, and two dates are furnished from which this period of 30 days runs. These periods are: (1) the date of the decree, and, in certain other circumstances, (2) the date of the knowledge of the applicant of the decree. The circumstance in which the second date is the starting point is 'where the summons was not duly served.' It is further argued that under Order 5, Rule 20, Sub-rule (2), Civil P. C.,
service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally,
and therefore where substituted service has been ordered and effected, according to the directions of the Court, there is due service of the summons within the meaning of Article 164, Lira. Act, and the application for setting aside the decree must be made within 30 days of the decree.
13. I am unable to accept this argument. The object of issuing a summons is to inform the party, against whom a suit has been instituted, of the fact, that there is a suit against him, and if he so chooses, he may come and defend it. If that be the object of a summons, and if, for no fault of his own, a defendant was never put in a position to know that a suit had been instituted against him, whatever steps may have been taken for serving the summons on him, these steps can never be accepted as amounting to due service.' When an order for substituted service is made by a Court, on the representation of a plaintiff, only one side is present before the Court and it acts on the representation of one party. Obviously it should be open to the defendant, when he appears, to show that the method employed was not calculated to effect the purpose, which the Court had in view, namely, informing the defendant of the institution of the suit. If this is so, the Court has to consider, in view of all the circumstances of the case, for example, the place where the defendant was when the summons was issued to him, where and how the summons was served, and so on, in order to see whether there was due service. For example, if a man has gone to Burma to earn a living and he has relations at home with whom he is in constant touch, and the summons is served on the defendant by affixation of a copy of it on the outer door of his house, it may be open to the Court to infer that the service was good, it being expected that the defendant's, close relations, living jointly with him, in the same house, would inform him of the case. Again, where it is found that the defendant knew that a suit was likely to come and, in order that a summons may not be served on him, he leaves the place, it may be open to the Court to hold that there was due service by substitution. On the other hand, if the defendant went, say, to Burma to earn a living and left no one at home, which remained vacant, and at the instance of the plaintiff a substituted service was ordered by publication of the fact of the institution of the suit in a paper published, say, at Aligarh, where the suit was instituted, the Court would be in a position to hold that there was no due service.
14. The rule that substituted service is to] be taken as effectual as personal service only means that the Court bearing the case may proceed with the suit as if the summons had been personally served on the defendant.
15. The result is that, in my opinion, whether there has been 'due service' or not is to be considered by the Court to which an application has been made for setting aside an ex parte decree, having regard to all the circumstances of the case as described above. If the conclusion is that there was due service, then, if the applicant has not coma within 30 days of the decree, he is barred by time. If the conclusion is that there was no due service, the limitation would be computed from the date of the applicant's knowledge of the decree. The mere fact that a substituted service had been ordered is immaterial, by itself.
16. In this particular case before us the Court was satisfied, on the affidavit furnished on behalf of the applicant, that there was no proper service and the ex parte decree should be set aside. It is true that the Judge, Small Cause Court, does not give his reasons in detail; but that is because his orders are final, subject to the High Court's power of interference in revision, and the learned Judge was not bound to give reasons in extenso for his opinion. I would hold that the application was within time.
17. Now I come to consider the second point. On a plain reading of Section 17, Provincial Small Cause Courts Act, the applicant for the setting aside of a judgment has to do these things : To start with, he ought to apply to the Court to which he proposes to make an application, to tell him what kind of security, in the circumstances detailed in the applicant's application, the Court would require of him to furnish. Usually the Court would ask for a cash security, but it may be satisfied on the applicant's representation that a cash security may be dispensed with. In rare cases, as in the illustration given by me in my judgment in Jhabboo Misir's case, cited below, the Court may refuse to take a cash security and may insist on other kind of security being taken and may insist on the move-able property in dispute being itself produced. When the Court gives its direction, namely, whether the applicant is to furnish cash security or is to give some other kind of security, the applicant should present his application for setting aside the decree, together with the security demanded. Then his duties are over. The security filed will then be scrutinized by the Court, and the Court shall see whether the security is to its satisfaction. Then 'presumably a notice would go to the plaintiff to show cause why the decree should not be set aside. This was also the view which I took in the case of Jhabboo Misir v. Howladar Tewari.
18. Although the rule (Section 17, Small Cause Court Act), requires that the security is to be furnished at the time of presenting an application for setting an ex parte decree, it has bean held in this Court in Moti Lal Ram Chandar Das. v. Durga Prasad : AIR1930All830 that the security may be furnished even after the application has been made provided the security is forthcoming within the period of 30 days of limitation. To this decision I was a party. This view was taken by other High Courts also : see V. M. Assan Mohamad Sahib v. M.E. Rahim Sahib  43 Mad. 579, Jeun Muchi v. Budhiram Muchi  32 Cal. 339 and Narain v. Pudan A.I.R. 1930 Oudh 1. The reason of this decision is that the previously made application may be taken as made on the date on which the security was furnished, as the period of limitation has not yet expired, and it would be a mere formality (which may be safely dispensed with) to direct the applicant to file a fresh application on the day when he furnishes the security.
19. Having regard to the principle of these decisions, it has been urged that the giving of directions by the Court, as required by Section 17, Small Cause Courts Act, may also be postponed to any time within 30 days of the period of limitation allowed by Article 164, Lim. Act. I think this contention is correct.
20. Where an applicant, without formally applying for the Court's direction, makes an application for setting aside an ex parte decree and furnishes security with it, and the Court directs a notice to issue to the other side, it must be taken that the Court is cognizant of the fact that the applicant has furnished security as required by Section 17, Small Cause Courts Act. The order that notice should issue may be taken as an approval by the Court of the security furnished, in the circumstances disclosed by the applicant in his application and affidavit (if any). We may also take it that, the Court, by implication, gave the applicant a direction that he should furnish security of the kind actually furnished by him. This is not a more attempt to get over what may be believed to be rather hard directions of the law. If the Court instead of issuing a notice in the case just mentioned, rejects this application because its direction has not been obtained, and if limitation has not already expired, it would be open to the applicant to make a fresh application and to furnish such security as the Court may direct. A party cannot suffer by the act of a Court, and therefore we must accept the position that the Court has given the direction, according to law to the furnishing of the security actually furnished, where the Court instead of rejecting the application of the defendant directs that a notice should issue.
21. Where the Court rejects the application because its direction has not been obtained or because it considers that the kind of security furnished is not to its mind, and, if, in the meantime, limitation has expired, the applicant has no remedy. By not complying with the rule of the law he took a risk and he has nothing to complain of.
22. The Court may and should always exercise its inherent powers to set wrongs committed by itself right, and if, for the fault of the Court, directions are not given at the right time, it will see that a party does not suffer.
23. The conclusion that I arrive at; therefore is that the proper course is for a party to make an application to the Court to obtain its direction as to the nature of the security, and then to apply with the security of the nature directed by the Court for setting aside the ex parte decree. The security furnished must comply with the directions of the Court, and the Court will see that the security is to its satisfaction, i. e., sufficient. But where the Court adopts a security without question and directs a notice to issue, it, by necessary implication, gives a direction that the security should be of the nature directed by it 'and that the security furnished is sufficient to its mind.
24. Applying this rule to the present case before me, the procedure adopted by the defendant is within the law.
25. In the result I would dismiss the application in revision.
26. This application under Section 115, Civil P.C. was referred by the single Judge, before whom it first came, to a Bench of two Judges, and at their request it has been referred by the direction of the Acting Chief Justice to the present Full Bench. There are two questions for consideration : the first dealing with the proviso clause to Section 17, Provincial Small Cause Courts Act; and the second with the words 'duly served' in Article 164, Limitation Act.
27. The facts are simple. The present applicant, Rambharos, filed a suit in the Court of Small Causes against the present opposite party, Ganga Singh. After an endeavour to serve notice personally on Ganga Singh, and notice by registered post, had, as alleged, failed, the Court upon the application of Rambharos directed substituted service, not in the manner provided in the earlier portion of Order 5, Rule 20, but by publication in a local newspaper, and (sic) by a further effort to serve the summons by a peon of the Court. There is material even on the present record to show that the notice was published in a paper as directed. There is nothing to show whether or not any endeavour was made to serve the notice personally or otherwise by a peon or, if such effort was made, what was the result. The incident is five years old, and it would appear that many of the papers have been weeded out.
28. On 31st July 1926, the applicant got a decree ex parte. On 22nd August 1929, i.e., rather more than three years later, Ganga Singh came into the Court of Small Causes with an application under Section 17, Provincial Small Causes Courts Act, asking for an order to set aside the decree. This application was supported by an affidavit of Ranjit, the brother of Ganga Singh, which briefly stated that he and his brother had only learnt of the decree four days previously. Further a bond executed by one Sadho Singh as surety for the payment of the decree, if eventually it was maintained, was also filed. The Court on that same day, 22nd August, ordered notice to issue. Nothing further occurred until 19th October 1929, when the Court set aside the decree on payment by Ganga Singh of Rs. 5 costs. From this order Rambharos has come up in revision.
29. The points urged by Mr. Malik on his behalf are twofold. He contends that direction of the Court referred to in the last five lines of the proviso to Section 17 should have been taken before security was furnished, and that no direction was in fact given within 30 days of the decree, and therefore the subsequent order was invalid. Secondly, he has contended that Ganga Singh did not in his application under Section 17, or in his affidavit, challenge the power of the Court to order substituted service, nor challenged the details of that order or the facts relating to its execution; nor did the Judge suo motu consider the existence of any such defects, and therefore the service must be regarded as good, and therefore the application was barred by limitation.
30. These objections on behalf of the applicant Rambharos are not as stated in the memorandum of appeal but as dictated by his counsel in response to a question of the Court at the conclusion of the argument. In substance they amount to this: that the literal directions:) contained in the proviso to Section 17 were not complied with by Ganga Singh, and that the notice on him must be taken to have been duly served. At this point the immense amount of trouble taken by Mr. Malik with the case may receive full recognition.
31. He has placed before us a very large number of cases, particularly in reference to the first point. It is not however necessary to enter into a detailed consideration of all these eases. It suffices to say that there is a general consensus of opinion that the proviso to Section 17 is in capable of literal application. Some learned Judges holding the words to be mandatory and some holding the words to be merely directory, none have been able to apply the proviso literally as it stands. No other view is possible. It is incapable of literal application.
32. According to the proviso as it stands, an applicant for an order to set aside an ex parte decree must, at the time of presenting the application, deposit the amount or give security. The choice is in our view clearly not with him, but, as the Court may direct;. Therefore reading the words literally he must get this direction before he makes his application for he must furnish the cash or security at the time of presenting his application and he cannot know which he has to furnish, unless he has got a previous direction. How, then, is he to get his previous direction without making an application? He cannot make an oral application, for manifestly the Court would ask him what it was all about, and to present a written application. He cannot present a written application to get the order set aside without furnishing cash or security, or his application would have to be dismissed. The only course which it would seem distantly possible for him to take to comply with the section, if he desires to be allowed to file security, would seem to be:
(a) To file a preliminary application setting out the facts, not asking for the decree to be set aside but merely stating that he intends to file an application asking for an order to set aside the decree, and asking for the moment only for a direction that he may adopt the course of filing security; (b) having got his direction, to present a second, the principal application with the security bond for an order to set aside the decree, and, in the case of a security bond pledging immovable property, after getting it executed, registered and verified.
33. And all this he must get done within 30 days. It is impossible to think that this is what the law intended. The matter is a Small -Cause Court matter, and the legislature could never have intended to multiply proceedings thus unnecessarily.
Where the main object and intention of a statute are clear. it must not be reduced to a nullity by the draftman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. Maxwell, Edn, 7, p. 193.
34. Now, despite the obscurity of the language used ' the main object and intention of the statute are clear.'
35. It is clear (1) that there must be an application for an order to set aside the decree; (2) that the Court must be satisfied either by the deposit of cash or security that the decree-holder will be able to get his money if the decree is upheld; (3) that these matters must be complete before the expiration of the 30 days' limitation provided by Article 164, Limitation Act.
36. The first two requisites are essential on the face of the proviso. The third is an inevitable deduction from the use of the words ' at the time of presenting his application ' and from the fact that this proviso exists at all. If it was not the intention of the legislature to secure-promptness by securing a complete and properly supported application before the expiry of the 30 days, it Would have been unnecessary to have this proviso at all, and it would have sufficed to rely upon the Civil Procedure Code. In our view, then, it must be held that the application is sufficient if it fulfils the above throe conditions.
37. The conclusion from this, then, is that no initial defects in the making of the application must be allowed to stand in the way of the applicant getting a notice issued to the decree-holder, provided that an application has been filed, and further that cash has been deposited, or, if the Court has so permitted, security has been given, all before the expiry of 30 days. A reasonable and practical interpretation of the section is therefore as follows : (1) the applicant must within 30 days file his application either with cash or with a [statement that he is prepared to give security (and in the latter case, he may, of course, tender the security he proposes land ask for the direction of the Court (2) In the case where he wants to give security, if the Court refuses to direct (security, he must deposit cash within [the 30 days, or his application will be [rejected. (3) If the Court agrees to direct security, then (a) it will consider (the security already offered, if it has been so offered; or (b) name security to its satisfaction which must be filed within the 30 days. (4) If the applicant does not in fact ask for a direction or if, though the applicant does ask for a direction, the Court does not in fact give any direction, but in fact the Court does issue notice, the Court shall be taken to have approved the deposit of cash or the security offered as the case may be. (5) If filed within the 30 days and accepted by the Court expressly or impliedly by the issue of notice the application is a good application, though it will be open to the decree-holder to challenge the nature land sufficiency of the security and to the Court under Order 9, Rule 9 to make such further conditions as it thinks fit. In the course of the argument it has been suggested that difficulty might arise if the Court delayed in giving its direction, or approving expressly or impliedly the security already tendered, so long that the period of limitation had expired before the applicant had fair opportunity of complying with the direction. It is not a case which we have now to consider, but in a suitable case it would bet open to the Court itself to consider and exercise its inherent powers reserved to it by Section 151, Civil P.C.
38. The next question we were invited to consider was the scope of the words ' duly served ' in Article 164, Limitation Act. These words appear capable of only one interpretation. It is open to the applicant to satisfy the Court that there was no real ground for allowing substituted service at all; that he was not ' keeping out of the way for the purpose of avoiding service; ' that there was no reason why the summons should not have been served upon him in the ordinary way; that the order for substituted service was not carried out by affixation in the Court-house and upon any con, spicuous part of the defendant's house, etc.; that it was not carried out in any alternative method directed by the Court; that the alternative method directed by the Court was not a proper method such as was reasonably calculated to secure that no notice should reach defendant. etc.
39. Now, applying what has been said above to the present case, it is clear that rightly or wrongly the learned Judge of the Small Cause Court was satisfied that the notice had not been properly served. The applicant, decree-holder, before us, has not been able to satisfy us either that the method of substituted service which was ordered by the Court was a reasonable and proper method; nor that even such substituted service as was ordered was actually carried out.
40. Further we are satisfied that the three essential conditions which we have laid down above were fulfilled in reference to the application itself. The application was filed within the 30 days. There was within the 30 days a deposit of security which was approved by the Judge, and all the requisites were complete within the 30 days. This being so, the application should be dismissed with costs.
Sulaiman, Ag. C.J.
41. I concur in the conclusions.
42. Under Article 164, Limitation Act, an application by a defendant for an order to set aside a decree passed ex parte must be made within 30 days of the date of the decree, or where the summons was not duly served, when the applicant has knowledge of the decree. The expression 'duly served ' obviously moans served as required by law. The procedure for the service of summonses is laid down in Order 5, Civil P.C., Where the service is not personal, it may be substituted. Under Order 5, Rule 20(2) service substituted by order of the Court is as effectual as if it had been made on the defendant personally. But as at the time when the substituted service is ordered the proceedings are ex parte, it would be open to the defendant when he appears later to challenge the propriety of the order and ask the Court to re-examine its fitness. If in view of any additional circumstances which he is able to place before the Court he can satisfy it that he was not keeping out of the way and that there was no sufficient reason;why the summons could not be served in the ordinary way or that the manner of service decided upon was not fair and just to him, he would have discharged the burden of showing that there was no due service.
43. As to Section 17, Provincial Small Cause Courts Act, I have no doubt in my mind that its provisions are not merely directory but that they are imperative and mandatory. Discretion to impose terms before setting aside an ex parte decree is given to the Court under Order 9, Rule 13, Civil P. C, The procedure prescribed in the Civil Procedure Code has been made applicable to a Court of Small Causes with a proviso. The whole object of the proviso is to introduce a variation in a Small Cause Court suit. If the proviso was not meant by the legislature to be indispensable there would have been no need for the proviso at all, as the Court has ordinarily discretion in the matter.
44. As Small Cause Court cases are petty eases arising out of mere money claims without any real dispute as to the title to any immovable property, the legislature apparently intended that the procedure regulating the setting aside of an ex parte decree should be strict, and a defendant should not be allowed to harass the decree-holder by such a proceeding without the penalty of furnishing adequate security for the decretal amount which can be conveniently availed of by the decree-holder if the application is dismissed.
45. Notwithstanding a few cases, there is an overwhelming preponderance of opinion in favour of the view that the proviso is mandatory. Both on the language of the section and on the principle of stare decisis, I would hold that it is not merely directory.
46. No doubt the language of the proviso-is very unhappy and there is some apparent inconsistency between the expression ' at the time of presenting his application ' and the expression ' as the Court may direct. ' If we take the two expressions literally, the two things cannot happen exactly simultaneously. But the direction of the Court may be obtained before the application is presented or just after presenting the application.
47. It is quite clear to me that an application cannot be presented after the prescribed period, nor can cash or security be deposited after the expiry of that period. The Court is not given any discretion at all to extend the time. If the security deposited within the time is discovered afterwards to be defective or unsatisfactory in any way, the Court has no power to direct a fresh security to be substituted for it after the expiry of the period.
48. It also seems to me that the expression ' as the Court may direct ' does not relate to ' to the satisfaction of the Court ' but to the nature or character of the security, that is to say, whether it is to be cash or other security. The applicant has no absolute choice as to the kind of the security, but it has to be subject to the' direction of the Court.
49. It however seems to me that if no security is deposited at the time of the presenting of the application or no direction of the Court as to its nature is obtained before or at the time, even then the proviso would be substantially complied with if before the expiry of the fixed period the defect is cured. It is open to an applicant to file a complete application accompanied with the necessary security up to the last day of the period. If previously he filed an application which is either irregular or defective, there is nothing to prevent him from filing within the time a fresh application which is not so defective. There is therefore no justification for not treating the previous application as having been properly presented on the date when it was in every way complete. I have therefore no hesitation in holding that no matter what the defects might have been in the application or in the security or in obtaining the direction of the Court at the time when the application was first presented, if that defect is absolutely cured before the expiry of the fixed period, the application becomes a proper one and fulfils the requirements of the proviso.
50. I felt somewhat inclined to hold that as the expression used is the present tense viz., ' Court may direct ' and not the present perfect tense ' the Court may have directed ' the direction may be given even after the expiry of the period, provided that the security had been deposited in time and was sufficient. In this view the applicant would be bound to file the application and make the deposit in time, taking the risk of the security not being accepted; but there would be nothing to prevent the Court from accepting it afterwards. My learned brethren rightly point out that the word is 'direct' and not 'approve,' and accordingly a subsequent acceptance would not be direction but approval. I therefore do not wish to differ from their opinion.
51. In the present case although the security was deposited without obtaining any previous direction, the Court ordered notice to issue before the period expired. It must accordingly be deemed to have by implication given the necessary direction.
52. Of course, the question whether the security is sufficient and satisfactory need not be finally determined during the period of 30 days. Indeed, the plaintiff decree-holder may come in afterwards and challenge its sufficiency. The mere fact that it is found afterwards that the security was sufficient, would not make the deposit of the security within the time in any way defective.
53. The application in revision is dismissed with costs.