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Sri Bhagwat Chaudhri and ors. Vs. Balkaran Saithwar and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All29; 65Ind.Cas.596
AppellantSri Bhagwat Chaudhri and ors.
RespondentBalkaran Saithwar and anr.
Excerpt:
provincial small cause courts act (ix of 1887), section 17, scope of - application for setting aside an ex parte decree--deposit of full decretal amount necessary. - - under these circumstances, it might well be held that he was entitled to accept as accurate the summons of the court as to what had been decreed, and that, having paid that amount with his application for restoration, he had done all that was required of him. 94-4-0 that he would have complied with the provisions of section 17. in my opinion the court had no jurisdiction to entertain the application without following the procedure prescribed in section 17; that is to say, it should have satisfied itself that the deposit had been made as provided in that section, or else that security had been given to its satisfaction......1st of march showing a sum of rs. 94-4-0 as due from the defendant-applicant here. on the 14th of march the applicant deposited rs. 90. on the 2nd of april the case was taken up in the presence of the parties. the applicant asked for one day's adjournment the reason for which was not disclosed. the court adjourned the case to the 4th. on the 4th, apparently, the notice of the court was drawn to the fact that rs. 90 only had been deposited whereas the amount decreed was rs. 94-4-0. thereupon the court passed this order: 'judgment-debtor to pay rs. 4-4-0 before the restoration application can be taken up. put up to morrow.' some time on the same date the court recorded the following order: 'the above order is cancelled now. turning to section 17 of the provincial small cause courts act. i.....
Judgment:

Ryves, J.

1. This is an application in revision from an order of the Small Cause Court of the City of Gorakhpur, dated the 4th of April last, rejecting an application to restore an ex parte decree. It appears that on the 25th of February 1921 an ex parte decree was passed against the present applicant. The suit in which that decree was passed was a suit to recover an ox or its price, namely, Rs. 80 and costs. The Court decreed Rs. 80 to the plaintiff plug Rs. 14-4-0 costs. On the same day the applicant here applied for the restoration of the case and asked leave to deposit Rs. 80 within a fortnight. Thereupon, the Court ordered notice to go to the other side and fixed the 2nd of April for hearing the application. Nothing was said in the order about depositing any money. The decree in the case was drawn up on the 1st of March showing a sum of Rs. 94-4-0 as due from the defendant-applicant here. On the 14th of March the applicant deposited Rs. 90. On the 2nd of April the case was taken up in the presence of the parties. The applicant asked for one day's adjournment the reason for which was not disclosed. The Court adjourned the case to the 4th. On the 4th, apparently, the notice of the Court was drawn to the fact that Rs. 90 only had been deposited whereas the amount decreed was Rs. 94-4-0. Thereupon the Court passed this order: 'Judgment-debtor to pay Rs. 4-4-0 before the restoration application can be taken up. Put up to morrow.' Some time on the same date the Court recorded the following order: 'The above order is cancelled now. Turning to Section 17 of the Provincial Small Cause Courts Act. I find that an application for setting aside an ex parte decree shall be accompanied with the deposit in Court of the amount due from the judgment-debtor under the decree. The application was put in on the 25th of February 1921 and Rs. 90 out of Rs. 94-4-0 was deposited on the 14th of March 1921. The provisions of the law are thus frustrated. I am afraid I cannot extend the time to the judgment-debtor. The application is, therefore, rejected.' It appears that sometime on that date, whether before or after the passing of this order Rs. 4-4-0 WAS tendered by the applicant. It looks as if the attention of the Court was drawn to Section 17 of the Provincial Small Cause Courts Act for the first time on the 4th of April 1921. I am asked to interfere in revision and direct the Court to accept the tender of Rs. 4-4-0 thus making up the whole amount due under the decree and to restore the application for restoration. It seems to me that I have no power to dose. The words of Section 17 of the Provincial Small Cause Courts Act are mandatory as was held by a Divisional Bench of this Court in the case of Jagan Nath v. Chet Ram 28 A. 470 : 3 A.L.J. 318 : A.W.N. (1903) 93. The learned Counsel for the applicant relies on the case of Lochi Lal v. Mewa Ram 14 Ind. Cas. 242. In that case a decree WAS passed ex parts in favour of the plaintiff for Rs. 190 plus Rs. 20-8-0 costs. The decree holder subsequently applied for execution of his decree and a notice was issued to the judgment-debtor to show cause why the decree should not be executed. The notice which was issued by the Court to the judgment debtor stated that the decree was for Rs. 190. The judgment-debtor then applied for restoration of the suit and deposited Rs. 190 the amount shown in the notice which he had received from the Court as the amount due on this decree. At the hearing it was objected that the provisions of Section 17 had not been complied with and the Court accepted that view and refused the application. On revision to this Court, a learned Judge, sitting alone, hell that, as the full amount alleged to be due under the decree had been deposited, the Court could entertain the application, and the case in Jagan Nath v. Chet Ram 28 A. 470 : 3 A.L.J. 318 : A.W.N. (1903) 93 was distinguished. In that case, however, the only notice which the judgment debtor had of the amount decreed against him, was what was stated in the summons of the Court itself, because ex hypothesi if his application was bona fide, he had no previous notice that a suit even had been instituted against him, much less what amount had been decreed. Under these circumstances, it might well be held that he was entitled to accept as accurate the summons of the Court as to what had been decreed, and that, having paid that amount with his application for restoration, he had done all that was required of him. But, even if the ruling in that case were applicable to the facts here. I think I am bound by the Divisional Bench case quoted above.

2. It was then argued that there was here 'a substantial compliance' with the words of the section. I do not understand what is meant by 'a substantial compliance.' Either the provisions of the section were complied with or they were not. In the first instance, no money at all was deposited, and leave was asked to deposit Rs. 80 only. On the 14th March Rs. 90 and not Rs. 80 were paid in, obviously suggesting that the applicant was conscious that something over and above the Rs. 80 claimed must have been decreed, presumably for costs or interest, or both. He appeared in Court that very day, and if he had made inquiries then, or had taken the trouble to look at the decree, which was prepared on the 1st March he would have seen that the amount decreed against him was Rs. 94-4-0. It seems to me doubtful whether, even on the 14th of March, if he had deposited the full amount of Rs. 94-4-0 that he would have complied with the provisions of Section 17. In my opinion the Court had no jurisdiction to entertain the application without following the procedure prescribed in Section 17; that is to say, it should have satisfied itself that the deposit had been made as provided in that section, or else that security had been given to its satisfaction. I reject the application with costs.


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