1. This is an application in revision against an order of the learned Small Cause Court Judge of Aligarh by which he rejected an application for setting aside an ex parte decree under Section 17, Provincial Small Cause Courts Act. The ex parte decree was passed on 5th August 1943 and, on 80th September 1943, an application for setting it aside was made. It was alleged that the applicant had knowledge of it only on 21st September 1948. Along with the application, there was a security bond filed by one Dhal Singh. The Court considered the affidavit of the surety as regards his financial condition and accepted the security. The matter came up for consideration later at the instance of the decree-holder and the learned Judge held that the steps taken did not amount to an effective compliance with the requirements of Section 17, Small Cause Courts Act. The proviso to Section 17 which is relevant for this case is in these terms:
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 the Court the amount due from him 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.
2. The learned Counsel for the applicant contends that what the surety did for him and on his behalf on 80th September 1948 amounted to a fulfilment of the conditions required of him by the law. The learned Counsel for the opposite party, however, argues that there was no previous application by the applicant or direction by the Court. If the deposit had been a cash deposit, there would have been no such complication. It is, however, contended that there was ho direction by the Court given on a previous application made by the defendant in compliance with which the security bond was furnished on 30th September 1943, the date when the application for setting aside the ex parte decree was made by the defendant. There is, -on the record, a written application presented on 30th September by Dhal Singh for permission to file a Security bond with a prayer to accept the same, but the learned Counsel contends that this does not mean that there was a previous application on which an order was passed and in compliance with which a security bond was furnished. It has been held in Sarvai Begam v. Haidar Shah ('12) 9 A.L.J. 121 with reference to the word 'apply' in Order 21, Rule 89, Civil P.C. that an application need not necessarily be in writing. For aught one knows, there might have been an oral prayer previously made by the defendant and the Court might have directed him or his surety to file a security bond. The order of the Court below allowing the surety to file a security bond and accepting the same on one and the same day implies a previous application-oral or written-by the defendant or the surety and a previous order by the Court.
3. The requirements of Section 17 are, to my mind, effectively complied with if the application for setting aside of the ex parte decree is accompanied by a cash deposit of the decretal amount or security bond safeguarding the interest of the decree-holder. The Legislature insists upon this provision only as a measure of protecting the decree-holder's interest. A cash deposit or a security bond achieves that purpose and if this condition is fulfilled there is, in my opinion, an effective compliance with the legal condition. I, therefore, think that the order of the Court below is wrong. I, therefore, set it aside and send the case back to the Court below with a direction to restore it to its original number and dispose of the same according to law. Costs here and hitherto will be the costs in the cause and will abide the result.