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Lochi Lal Vs. Mewa Ram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in14Ind.Cas.242
AppellantLochi Lal
RespondentMewa Ram
Excerpt:
provincial small cause courts act (ix of 1887), section 17 - ex parte decree--application to set aside--deposit of amount due under the decree--amount of costs not deposited with the application--compliance with the requirements of the section. - - this contention, in my opinion, is well-founded......therefore, the court had no jurisdiction to entertain the application for setting aside the ex parte decree. as i have: said above, the principal amount of the decree was rs. 190 and the costs awarded amounted to rs. 20-8-0. the plaintiff applied for execution of the decree and alleged that the amount due under the decree was rs. 190. that is the amount mentioned in the notice issed to the defendant to show cause why execution of the decree should not be granted. it is this amount which the defendant deposited with the application made by him to have the decree set aside. it is, true that the total amount decreed including costs was rs. 210-8-0, but the amount which the decree-holder stated to be due under the decree was rs. 190-8-0. section 17, sub-section (1), requites that with.....
Judgment:

Banerji, J.

1. This is an application for revision of an order of the Judge of the Court of Small Causes of Agra, setting aside a decree passed ex parte on the 28th of August 1908. The decree was for Rs. 190 and costs amounting to Rs. 20-5 0. The decree-holder applied for execution of the decree in 1911 and a notice was issued to the judgment-debtor to show cause why the decree should not be executed. Thereupon, he presented an application on the 18th of July 1911 to have the decree set aside on the ground that he had no notice of the Suit. With his application, he deposited Rs. 190-8-0 as required by Section 17, Sub-section (1) of the Provincial Small Cause Courts Act. The application was resisted on two grounds; first, that notice of the suit had been duly served on the defendant applicant and, secondly, that the deposit made was insufficient. It is contended here that as the decree was for Rs. 19ft principal and Rs. 20-8-0 as costs, the deposit made was insufficient and, therefore, the Court had no jurisdiction to entertain the application for setting aside the ex parte decree. As I have: said above, the principal amount of the decree was Rs. 190 and the costs awarded amounted to Rs. 20-8-0. The plaintiff applied for execution of the decree and alleged that the amount due under the decree was Rs. 190. That is the amount mentioned in the notice issed to the defendant to show cause why execution of the decree should not be granted. It is this amount which the defendant deposited with the application made by him to have the decree set aside. It is, true that the total amount decreed including costs was Rs. 210-8-0, but the amount which the decree-holder stated to be due under the decree was Rs. 190-8-0. Section 17, Sub-section (1), requites that with the application made by the defendant far an order to set aside an ex parte decree, he should deposit or give security for the amount due by him under the decree. According to the plaintiff's own statement, the amount due by him under the decree was Rs. 190-8-0. This amount he deposited with his application. At the hearing, it was decided that a further sum of Rs. 20 was payable and this amount also the defendant deposited, though not at the time when he presented his application. I think there has' been a substantial compliance with the requirements of Section 17 of the Act. This case is distinguishable from the case of Jagannath v. Chet Ram 28 A. 470 : 3 A.L.J. 318 : A.W.N. (1906) 93. In that case no deposit whatever was made with the application, nor was any security given as required by Section 17. In the present, case, the full amount alleged to be due under the decree was deposited with the application. The Court, therefore, was competent to entertain the application. It is next urged that the' Court did not try the case according to law and that the only question it decided was whether the deposit made was sufficient. This contention, in my opinion, is well-founded. The Court does not appear to have recorded any evidence. It simply referred to an affidavit of the applicant which was, so far as I can judge, very vague. In that affidavit he says he had no notice of the decree. He does not assert in it that he had no notice of the suit. I think the Court ought to try the question whether proper service of summons was made on the defendant and for this purpose it should record evidence relevant to the above matter. I accordingly set aside the order of the Court below and send back the case to that Court with directions to dispose of the application of the defendant after recording such evidence as the parties may adduce. I make no order as to the costs of this application.


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