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Moti Lal Ramchandar Vs. Durga Prasad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1930All830
AppellantMoti Lal Ramchandar
RespondentDurga Prasad
Excerpt:
- .....lal ram chandar das. durga prasad, the defendant, presented an application to set aside the ex-parte decree and the decree was set aside by the learned small cause court judge.2. by this revision the plaintiff seeks to set aside the order setting aside the ex parte decree on the ground that the application that was presented to the court by durga prasad was not accompanied with either a security bond or the cash sum which had been decreed in favour of the plaintiff. reliance is placed on the case of badlu singh v. panthu singh a.i.r. 1923 all. 2703.the facts are that durga prasad stated that he got notice of the decree on the 12th february 1929. on 23rd february 1929 he presented an application to set aside the decree. but that application was not accompanied by either a security.....
Judgment:

Mukerji, J.

1. This is an application in revision under the following circumstances: A decree was passed on 4th March 1927, in favour of the applicant firm Moti Lal Ram Chandar Das. Durga Prasad, the defendant, presented an application to set aside the ex-parte decree and the decree was set aside by the learned Small Cause Court Judge.

2. By this revision the plaintiff seeks to set aside the order setting aside the ex parte decree on the ground that the application that was presented to the Court by Durga Prasad was not accompanied with either a security bond or the cash sum which had been decreed in favour of the plaintiff. Reliance is placed on the case of Badlu Singh v. Panthu Singh A.I.R. 1923 All. 270

3.The facts are that Durga Prasad stated that he got notice of the decree on the 12th February 1929. On 23rd February 1929 he presented an application to set aside the decree. But that application was not accompanied by either a security bond or cash, and it is urged that the Court cannot look at his application because petitioner did not comply with the provisions of Section 17, 'Small Cause Courts Act. That is quite correct, but the Court; cannot treat an application as an application to set aside an ex parte decree unless and until the application is accompanied by cash or security bond. In this case two days after the presentation of the application, the Court directed security to be furnished and the security was furnished within the time allowed by law for applying for setting aside an ex parte decree. We are of opinion that the application must be deemed to have been a proper application only on 15th March 1929 and must be deemed as having been presented on that date after the proper deposit had been made. A number of cases have been cited by Verma to show that the Court cannot grant time to a judgment-debtor to furnish security. But in the present case the deposit having been made within time no such question arises as is dealt with in the cases referred to. In the case of Jagan Nath v. Chote Ram [1906] 28 All. 470 and Chote Lal v. Lakhmi Chand [1912] 38 All. 425 either no money was deposited or if any deposit was made it was not either within time or sufficient.

4. In the case of Badlu Singh v. Panthu Singh A.I.R. 1923 All. 270 mentioned above it does not appear from the judgment of the single Judge whether the payment of cash into Court was within time or beyond time. If the learned Judge meant to hold that if money is deposited within time, even then the application for restoration is to be dismissed we are unable to agree with that view.

5. Our attention has been drawn to the case of Jenu Muchi v. Budhiram Muchi [1905] 32 Cal. 339 and V.M. Assan v. M.E. Rahim [1920] 43 Mad. 579. We think that the view adopted in those cases is sound. Under the circumstances we dismiss this application with costs.


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