1. This is an application in revision by a plaintiff against an order of 14th April 1934, by a Small Cause Court in the following terms:
I accept the affidavit and set aside the ex parte decree on condition that the defendant pays a sum of Rs. 10 as costs to the vakil for the other side.
2. The facts are as follows : Plaintiff brought a suit on a promissory note and obtained a decree ex parte on the 22nd July 1931. The summons on the defendant was served by affixation on his house and the affidavit of the process server was given that the wife of defendant was present in the house. This service was under Order 5, Rule 17, and the Court held under Rule 19 that the summons was duly served. On the 22nd July 1933, the defendant made an application for restoration of the suit, decided more than two years previously, filing an affidavit that he had no knowledge of the proceedings and offering personal security. No order was passed on the application of 22nd December 1933, at the time and on 25th January 1934, a personal security bond was filed. The application for restoration was put up for orders on the 27th January and the Court ordered that it would not accept personal security and that security of immovable property must be filed in accordance with the provisions of Section 17, Provincial Small Cause Courts Act. On the 22nd February the office reported that no security bond had been filed. Time was extended to the 7th March. The security bond was not filed and on the 8th. March the application was dismissed. On the 20th March an application was made by the defendant for review of the order of the 8th March. Accompanying that application was a security bond of immovable property. It will be noted that the application was only for review of the order of dismissal of the previous application, but the Court below has gone beyond the terms of the actual application and by its order has set aside the ex parte decree and directed restoration of the suit. In the affidavit of 22nd December 1933, the defendant alleged that he came to know of the decree on 18th December 1933. The legality of the present order has been attacked on various grounds. The first ground is that the defendant failed to comply with the terms of Section 17, Provincial Small Cause Courts Act, and the Court therefore acted with illegality and material irregularity in setting aside the ex parte decree, and the second ground was that the Court should have decided whether there was sufficient cause within the meaning of Order 9, Rule 13. As regards this second point the Court below has accepted the affidavit and that affidavit does, set forth what amounts to 'sufficient cause.' I think therefore that there is no merit in the second objection.
3. As regards the first objection it does appear that the Court has not complied, with the provisions of Section 17, Provincial Small Cause Courts Act. There are a number of rulings on the points as to what a defendant must do under that section. In Ram Bharose v. Ganga Singh 1931 All. 727, these matters have been, considered by Full Bench. One of the points argued was in regard to limitation and the argument was made that under Article 164 an application by a defendant for an order to set aside a decree passed ex parte must be made from the date of the decree or, where a summons was not duly served, when the applicant has knowledge of the decree. It was argued that the lower Court had not come to a finding that the summons was not duly served and that the affidavit did not set out any defect in the method of service. On the other hand the affidavit did set out that the defendant did not have knowledge of the suit and the Court has accepted that allegation. In the ruling in question on p. 1051 it is stated:
The object of issuing a summons is to inform the party, against whom a suit has been, instituted, of the fact that there is a suit against him, and if he so chooses, he may come to defend it. If that be the object of a summons, and if, for no fault of his own, a defendant was never put in a position to know that a suit had been instituted against him, whatever steps may have been taken for serving the summons on him, these steps can never be accepted as amounting to 'due service.'
4. This shows therefore that there was no due service on the defendant and, the period of limitation would run from the time when the applicant had knowledge, that is, from 18th December 1933. The security however was not filed within 30 days from that date and it has been held in Moti Lal Ram Chandar Das v. Durga Prasad 1930 All. 830, by a Bench of this Court that the Court cannot grant time to a judgment-debtor to furnish security under Section 17, Small Cause Courts Act. There does appear to have been, a want of compliance with the provisions of the section in this case. A receipt has been filed now by the defendant which purport s to show that a payment of Rs. 248, was made by the defendant to the plaintiff, and it is the case for the defendant that this receipt was in discharge of the sum due under the promissory note. That being so it appears desirable that the defendant should have a retrial. In Muhammad Bakar v. Bahal Singh (181) 13 All. 277, it was laid down that Section 25, Provincial Small Cause Courts Act, was not intended to give in effect a right of appeal in all Small Cause Court cases either on law or fact. The revisional powers given by that section are only exercisable where it appears that some substantial injustice to a party to a litigation has directly resulted from a material misapplication or misapprehension of law or from a material error in procedure. It appears to me that substantial justice is done to the parties by the order in question and that it is desirable in the interests of justice that there should be a retrial.
5. Accordingly I dismiss this application in revision. Costs hitherto incurred will be costs in the case.