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Ahmad Yar Khan Vs. Kheyali - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All933; 147Ind.Cas.853
AppellantAhmad Yar Khan
RespondentKheyali
Cases ReferredRam Bharose v. Ganga Singh
Excerpt:
.....for its own satisfaction or for the protection of the decree-holder, desired to have the security bond verified, and no doubt it was perfectly correct in doing so. 4. it would not have become ineffective unless the sureties had dishonoured their signatures, and as they eventually verified them, the position was that the bond was a perfectly good bond, but there was a formality to be gone through before the court felt justified in accepting it. 4. strong exception has teen taken to this pronouncement of the judge, but the fact of the matter is that, having the statements of both parties and the scribe before him and having examined the promissory note, he came to the conclusion that the defendant did not execute the promissory note in their favour and did not affix his thumb-mark at the..........for its own satisfaction or for the protection of the decree-holder, desired to have the security bond verified, and no doubt it was perfectly correct in doing so. the fact however that it did so desire and did order the bond to be verified, does not prove that the bond as filed on 11th may was an ineffective bond. 4. it would not have become ineffective unless the sureties had dishonoured their signatures, and as they eventually verified them, the position was that the bond was a perfectly good bond, but there was a formality to be gone through before the court felt justified in accepting it. it appears to me therefore that the case is entirely different from the one in which an unregistered bond which, on the face of it, was invalid as it stood, was presented to the court, or the.....
Judgment:
ORDER

Kendall, J.

1. This is an application for the revision of a decree and order of the Judge of the Small Cause Court of Budaun, dismissing the plaintiff's suit. The plaintiff had obtained an ex parte decree on 26th April 1932 and on 11th May the defendant made an application to set aside the ex parte' decree, filing at the same time a security bond. Of this bond it may be said that it was eventually accepted by the Court, but at the time when it was filed it had not been verified by the two sureties. On 19th May the Court directed that the bond should be verified, and fixed 23rd May for the next hearing. On the same date, 19th May, an endorsement on the security bond was made by the advocate for the defendant to the effect that the sureties were sufficient for the amount required. The bond was finally verified on 28th May, and Mr. S.P. Sinha, who has argued the case in favour of the applicant, points out that this date is two days beyond the period of limitation prescribed for making an application and providing security for the setting aside of an ex parte decree under the proviso to Section 17, Provincial Small Cause Courts Act. However the Court set aside the ex parte decree on 11th June and thereafter the suit was heard on its merits and the plaintiff's case dismissed.

2. The principal question that I have been asked to decide is whether the order setting aside the ex parte decree was passed in accordance with law. It is argued that the bond that was filed with the application by the defendant was an ineffective bond because it had not been verified, and in fact it did not become effective until 28th May. I have been referred to the case of Badlu Singh v. Panthu Singh AIR 1923 All 270. In this case a mortgage bond was proffered but it had not been registered, and this Court held in revision that the unregistered bond was no better than waste paper and that the application for setting aside the decree had not been presented in accordance with law. In another case which has been referred to Kiran Koomar v. Baijnath : AIR1928All607 the circumstances are not analogous to those in the present case because the Court did not accept the bond, but I have also been referred to an unreported case in which the Court is said to have held that a bond proffered by the defendant with the application was held to be ineffective because it had not been properly stamped. I have not been able to procure the record of this case, but as from the description given above it appears to me to differ essentially from the present one, I have not thought it necessary to delay the decision of the present case in order to obtain the record as a matter arising out of it is still subjudice. Finally, in the case of Moti Lal Ram Chandar v. DurgaPrasad : AIR1930All830 , where the applicant was providing cash and not security, it was held that the application in a case like the present can only be considered to be a proper application 'on the date after the proper deposit was made.' There is however a Full Bench ruling of this Court in which the matter has been fully discussed, viz., the case of Ram Bharose v. Ganga Singh : AIR1931All727 in which it has been held that where an applicant furnishes sufficient security with his application and the Court orders notice to issue to the other side before the expiry of the period of limitation allowed by Article 164, the Court must be deemed to have by implication given the applicant a direction that he should furnish security of the kind actually furnished by him.

3. In the present case it is clear that the Court did not find any fault with the form or the amount of security, and did not reject it and that the delay between 11th May 1932 when the application was filed and 28th May 1932 when the bond was finally verified was due to the proceedings of the Court. The Court, either for its own satisfaction or for the protection of the decree-holder, desired to have the security bond verified, and no doubt it was perfectly correct in doing so. The fact however that it did so desire and did order the bond to be verified, does not prove that the bond as filed on 11th May was an ineffective bond. 4. It would not have become ineffective unless the sureties had dishonoured their signatures, and as they eventually verified them, the position was that the bond was a perfectly good bond, but there was a formality to be gone through before the Court felt justified in accepting it. It appears to me therefore that the case is entirely different from the one in which an unregistered bond which, on the face of it, was invalid as it stood, was presented to the Court, or the other one to which I have referred in which the bond needed to be stamped and had not been stamped. The decision of the Full Bench in the case of Ram Bharose v. Ganga Singh : AIR1931All727 is in favour of the opposite party, and my conclusion therefore is that the Court did not act illegally in setting aside, the ex parte decree and hearing the suit on the merits. For the rest, the question is one of fact. The defendant denied the execution of the promissory note on which the plaintiff sued. It is true that expert evidence proved that his thumb impression had been affixed to it, but the Court has found that

the defendant being an illiterate person he cannot be supposed to account for every thumb mark which he was made to put.

4. Strong exception has teen taken to this pronouncement of the Judge, but the fact of the matter is that, having the Statements of both parties and the scribe before him and having examined the promissory note, he came to the conclusion that the defendant did not execute the promissory note in their favour and did not affix his thumb-mark at the time when the promissory note was written. He took various circumstances into account and I am not able to hold that the decision is a perverse one. Mr. Sinha has pointed out that the defendant had stated that his thumb impression was affixed to a document in connection with a case in which he was acting as shana and this was how he explained the fact that his impression had been affixed to the promissory note in suit. The plaintiff made an application to summon a register from which he hoped to prove that there had not been an attachment against Moti, the judgment-debtor in the case in which the defendant claims be have acted as shahna within the last four years, but the Court refused to summon this register. It appears however that the defendant's statement was made on 6th July and the plaintiff's application was not made until 28th July, when the evidence on both sides had been completed. There had in fact been a very considerable delay, and I cannot hold that the lower Court acted illegally in any way in refusing to re-open the case and to summon this register.

5. The result is that the application fails and is dismissed with costs.


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