1. This is an application in revision against an order of the Additional Munsif of Muzaffarnagar exercising jurisdiction as Judge of the Court of Small Causes.
2. On 6th August 1929, a decree for Rs. 157-10-0 was passed ex parte in favour of the applicant Sher Ahmad Khan against Ali Bakhsh the opposite party who was the defendant. Ali Bakhsh was arrested in execution of the decree and brought before the Munsif. On 26th October 1929, Ali Bakhsh presented a petition to the Court to set aside the ex parte decree and to comply with the provisions of Section 17, Provincial Small Cause Courts Act, a security bond was executed by Genda Mal in which Genda Mal undertook to produce before the Court when called upon to do so the judgment-debtor and on failure of his ability to produce the judgment-debtor he would pay up the amount due to the decree-holder. The Court fixed 23rd November 1929, for hearing the application to set aside the ex parte decree. On that date the decree-holder pointed out to the Court that no security bond had been filed in pursuance of Section 17, Provincial Small Cause Courts Act. On 4th January 1930, the Court directed the defendant to deposit the amount of the decree in cash and he did so on 23rd January 1930. On 25th January the ex parte decree was set aside and it is against this order that the present application in revision has been filed.
3. It has been contended by Mr. Pandey for the petitioner that in this case there was really a non-compliance with the provisions of Section 17, Provincial Small Cause Courts Act and in any event it was the duty of the judgment-debtor to have obtained an order from the learned Judge on 26th October 1929 whether the security that was being offered could have been offered by the judgment-debtor in lieu of the deposit of the sum of money which had. been decreed in favour of his client the plaintiff. Mr. Pandey has referred me to the cases of Sri Bhagirat Chaudhri v. Balakran Saithwar A.I.R. 1922 All. 29 and Badlu Singh v Panthu Singh A.I.R. 1923 All. 270, in support of his contention that there has been a non compliance with the provisions of Section 17, Provincial Small Cause Courts Act; He has further referred to the case of Jhabbu Misir v. Havaldar Tiwari : AIR1929All840 , in support of his contention that the Court's direction as regards security could have been taken when an application for setting aside an ex parte decree was presented to the Judge of the Court of Small Causes.
4. It seems to me that Section 17, Provincial Small Cause Courts Act, lays down an imperative rule that when a judgment-debtor seeks to set aside an ex parte decree he must at the time of presenting his application either deposit in Court the amount due from him under the decree or give security to the satisfaction of the Court for the performance of the decree or compliance with the judgment as the Court may direct. In this case, in my opinion, there has been no compliance with the provisions of Section 17. I have had the security bond read out to me and it appears to me that the bond was a bond which was contemplated under the provisions of Sub-rule (3), Rule 40, Order 21, Civil P. C, and it was not a security contemplated under Section 17, Provincial Small Cause Courts Act. Moreover the direction of the Court was admittedly not sought for when the security bond was presented.
5. Mr. Panna Lal on behalf of the judgment-debtors contends that inasmuch as the learned Small Cause Court Judge directed cash to be deposited in Court and as cash was deposited subsequently there had been a compliance with the provisions of Section 17. Ha further contends that when notice was directed to be issued upon his application of 26th October 1929 it must be deemed that the Court had accepted the security; otherwise it would not have directed process to issue.
6. He has also contended that the Court should not interfere in revision in a case like the present because at most there was a mere irregularity and not an illegality in the case.
7. I am unable to accept the contention of Mr. Panna Lal. I have already stated that in my opinion the provisions of Section 17 are mandatory and a non-compliance with those provisions in my opinion amounts to an illegality and cannot be ignored on the ground that it is a mere irregularity. Mr. Panna Lal has further argued and in support 'thereof he has referred to the case of Azamatullah Khan v. Ahmad Ali : AIR1925All379 that I should hold that the subsequent payment of the cash into Court was a substantial compliance with the requirements of Section 17. In my opinion it is impossible to accept the contention of Mr. Panna Lal. The case of Azmatullah Khan v. Ahmad Ali : AIR1925All379 is clearly distinguishable and has no ampliation to the facts of this case. In my opinion the furnishing of the security for the appearance of the judgment-debtor, that is all that the security in this case amounts to, before the Court, cannot be deemed to be a compliance with the requirements of Section 17, nor can it be said that the decree-holder had chosen his remedy by the arrest of the judgment-debtor, which was ensured if the security bond was filed for producing the judgment-debtor before the Court when called upon to do so. The result is that I allow the application and set aside the order of the learned Judge of the Court of Small Causes dated 25th January 1930.