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Jhabboo Misir Vs. Havaldar Tewari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All840
AppellantJhabboo Misir
RespondentHavaldar Tewari
Cases ReferredJagan Nath v. Chet Ram
Excerpt:
.....of the application as to whether he should 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, as required by the proviso of section 17, clause 1. provincial small cause courts act, had not been obtained, and (2) that the security offered with the application was not such as satisfied the court on the date on which the application was presented. to give security to the satisfaction of the court, as the court may direct, means that the nature and kind of the security must be according to the direction of the court, which should also be satisfied as regards its sufficiency. whether it should be by hypothecating proprietary tenure, fixed rate tenancy house property, pledge of ornaments, or the..........taken the view that the applicant has the option either to deposit the amount in cash or to give security, direction of the court could have only been meant to refer to the character of the security.16. for the reasons already stated, while i do not agree with the court below that any direction of the court is necessary as to whether the applicant for an order to set aside the ex parte decree should furnish security instead of depositing the decretal amount in cash, or that the applicant must obtain a certificate, so to say, as regards the sufficiency of the security at the time of presenting his application, i maintain the order sought to be revised on the ground, that the applicant should have obtained the direction of the court as regards the character of the security which he.....
Judgment:

Mukerji, J.

1. This is an application to revise the order of the Judge, Small Cause Court, Ballia, dated 3rd March 1928 by which that learned Judge refused an application on behalf of a defendant judgment-debtor to set aside the ex parte decree made against him on 1st November 1927.

2. The only point that requires decision in this Court is whether the learned Judge was right in dismissing the application on the ground (inter alia) that no direction of the Court was taken as to whether the judgment-debtor should deposit, along with his application, the decretal amount or should furnish security to the satisfaction of the Court.

3. We have to construe the proviso to Sub-section 1, Section 17, Provincial Small Cause Court Act. It reads as follows:

Provided an applicant for an order to set aside a decree passed ox parte... shall, at the time of presenting an application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment 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.

4. The plain construction of the above proviso would be that the applicant has to do one of two things and that he has to do such of the two things as may be dictated to him by the Court. The choice of the alternative lies, as to the performance on the part of the applicant with the Court and not with the applicant himself. The two things that the applicant is required to do are (1) deposit of the amount due from him under the decree or in pursuance of the judgment and (2) giving of security to the satisfaction of the Court for the performance of the decree or the compliance with the judgment. It has been urged that where the judgment-debtor is prepared to deposit in Court the amount due from him under the decree or in pursuance of the judgment, it would be an unnecessary procedure on the part of the Court to solemnly signify that the security in cash may be deposited. Let us see if this is universally true.

5. A Court of Small Causes, as constituted under the Provincial Small Cause Courts Act, takes cognizance of all suits of a civil nature except those specifically exempted from its cognizance (S. 15 of the Act). Thus there may be cases in which the deposit of what has been called the decretal amount may not be enough to satisfy the need of the proviso to Section 17, Small Cause Courts Act. Take for example, this particular case. A father, by his will leaves his gun, as an heirloom, to the elder of his two sons. The younger son, being desirous of keeping the gun used by his father in his lifetime, takes possession of it. The elder brother sues for recovery of the gun. Ordinarily, he would be required to value the gun both for the purpose of jurisdiction of the Court and also for the purpose of enabling the Court to assess a money value for the gun in case the same was not forthcoming as required by Rule 10, 0. 20, Civil P.C. Suppose the Court directs the younger son to pay Rs, 250 as compensation if the gun is not forthcoming. The defendant may be perfectly willing to pay Rs. 250 to the elder brother and keep the gun. Under the provision of Order 21, Rule 31 the decree for recovery of the gun would be executed by actual seizure of the gun and the delivery of it to the successful plaintiff. It is only in the case of all effort at getting hold of the gun failing that the compensation will be awarded to the plaintiff. Suppose that a decree is passed, ex parte, in favour of the elder brother against the younger brother. Then the younger brother presents an application to the Court for setting aside the ex parte decree, the Court may very well say to the applicant:

I won't accept the deposit of Rs, 250 as a condition precedent to setting aside of the ex parte decree. The decree may be executed today and the gun may be recovered this afternoon. You must produce two gentlemen of honour and means as security to sea that nothing short of the gun itself is forthcoming after the retrial of the restored suit is over.

6. Such a case, to my mind, would be a case in which the Court may very well say that security to the satisfaction of the Court shall be given and the decretal amount shall not be deposited as a condition precedent to the entertainment of the application.

7. As I read the proviso to Section 17, I find no ambiguity whatsoever in it. The rule of law has to provide for all sorts of cases. In cases where the 'decree is of the simplest character, namely, where it directs payment of money by one party to another, the Court would surely prefer a deposit of the decretal amount to furnishing of any other kind of security. But where the Court, on the representation of the applicant agrees to accept security other than cash security, it shall see, when it gives the direction that security other than cash security may be furnished, that such security is to the satisfaction of the Court. The words may direct' in my opinion have no reference to the nature of the security. The nature of the security is sufficiently defined by the words, 'to the satisfaction of the Court.'

8. In my opinion, the proper procedure when an application is made for the setting aside of an ex parte decree passed by a Small Cause Court or when an application for review of judgment of such Court is made is, to present a petition to the Court, asking for its specific order as to what the applicant should do, in the nature of furnishing security The Court will then, on considering the entire circumstances of the case, decide whether a certain and what amount should be furnished as cash security or whether it should, in suitable cases, in spite of offer of cash security require any other kind of security or whether, in the case of the decree being for money only, the Court will allow the applicant to furnish any security other than cash security and, in that case, will tell the party, after hearing what sort of security he is prepared to furnish, whether the security proposed will satisfy it or not. I do not suggest that evidence as to the security being to the satisfaction of the Court may not be taken on a date subsequent to that on which the application itself is presented. It may be that the consideration of the question before the Court will require more time than the Court is able to give on' the day the application is presented. All that is a subsidiary matter. The main thing is that, with the presentation of the application the applicant must invite the attention of the Court to his application and seek the Court's direction.

9. In my opinion the order appealed against is correct, so far as the interpretation of the proviso to Section 17 goes. On this ground alone, I will dismiss the application with costs.

Niamatullah, J.

10. This is an application for revision of an order passed by the Court of Small Causes at Ballia refusing to set aside an ex parte decree passed against the application on 1st November 1927. The application for order to set aside the ex parte decree was made on 15th December 1927. On the face of it, the application was made more than 30 days after the passing of the ex parte decree; but the applicant sought exemption on certain grounds mentioned in his application, which, as I read the judgment of the lower Court have not been disposed of. It is, therefore, not necessary to refer to this aspect of the matter any further. The application for order to set aside the ex-parte decree was not accompanied by a deposit in Court of the amount due under the decree; but a security bond hypothecating immovable property, prima facie duly executed, was filed. It was disallowed by the Court below on the grounds (1) that:

the direction of the Court at the time of the presenting of the application as to whether he should 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, as required by the proviso of Section 17, Clause 1. Provincial Small Cause Courts Act,

had not been obtained, and (2) that the security offered with the application was not such as satisfied the Court on the date on which the application was presented.

11. It is contended in revision that no direction of the Court was necessary as regards the deposit of the decretal amount in cash or the security to be furnished under 8. 17, Provincial Small Cause Courts Act, nor was it necessary to adduce evidence of the sufficiency or otherwise of the security on the date on which the application was presented if subsequently the applicant could satisfy the Court that the security offered was adequate.

12. The proviso to Section 17, Provincial Small Cause Courts Act, is somewhat ambiguously worded. Omitting words with which we are not concerned, it runs thus:

Provided that an applicant for an order to set aside a decree passed ex parts shall, at the time of presenting his application either deposit in the Court the amount due from him under the decree or give security to the satisfaction of the Court for the performance of the decree, as the Court may direct.

13. The last five words, 'as the Court may direct' give rise to an ambiguity which makes certain provisions in the proviso a little obscure. If they are intended to refer to the two alternatives mentioned in it, namely, (1) either to deposit the decretal amount, or (2) give security to the satisfaction of the Court, the grammatical construction would load to the result that the applicant must obtain the direction of the Court at the time of presenting his application as to whether he should adopt one or the other of the two alternatives. It is obvious that no Court will refuse to accept deposit in cash; but the section, as it stands, makes the observance of the formality to obtain the Court's direction necessary. If, in the absence of the direction of the Court, sufficient security is given and the applicant cannot be deemed to have complied with the requirements of the proviso, it is equally arguable that a deposit without a specific direction does not comply with the requirements of it. It seems to me that the words in question have no grammatical relation to the two alternatives already mentioned. The applicant has been given the option either to deposit in cash, or to give security to the satisfaction of the Court; and in the latter case, provided the security is to the satisfaction of the Court, no permission of the Court to furnish security is needed. The question then arises as to whether the direction contemplated: relates to the security being to the satisfaction of the Court. I do not think this is the case;

To give security to the satisfaction of the Court, as the Court may direct

would be a very clumsy language to use and I do not think the framers of the proviso intended that construction. If we were at liberty to insert the word 'such' between 'give' and security' so as to make that particular part of the proviso to be:

to give such security to the satisfaction of the Court, as the Court may direct,

no ambiguity would be left, and the proviso would be capable of an obviously sensible interpretation, namely, that the direction of the Court is necessary as regards the kind of the security which, when furnished, should satisfy the Court as regards its sufficiency. I am inclined to think that, even without inserting the word such,' as suggested above the proviso in capable of that interpretation, in which case:

to give security to the satisfaction of the Court, as the Court may direct,

means that the nature and kind of the security must be according to the direction of the Court, which should also be satisfied as regards its sufficiency. In this view of the matter, which I accept, it is necessary for an applicant, who is not ready and willing to deposit the, decretal amount with his application for an order to set aside the ex parte decree and desires to give security instead should 'at the time of presenting his application obtain the direction of the-Court as regards the character of the security, i.e. whether it should be by hypothecating proprietary tenure, fixed rate tenancy house property, pledge of ornaments, or the like. Of course, in every case the Court should be satisfied as regards the sufficiency of the security to be furnished according to its directions. This is a separate requirement altogether. It is not, in my opinion, necessary that the Court should be placed in a position to express its satisfaction as regards the sufficiency of the security at the time of presenting the application. If the Court is not satisfied on that question on the evidence which the applicant can produce forthwith, it is open to the applicant to satisfy the Court on that point at a latter but convenient stage, and if the Court is then able to record its satisfaction. I think the requirement of the section is made out.

14. The only case decided by this Court, to which reference has been made in course of arguments, is Jagan Nath v. Chet Ram [1906] 28 All. 470 which is an authority for the proposition that an applicant for an order to set aside an ex parte decree passed by a Court of Small Causes must either deposit the decretal amount in cash or furnish security. It does not decide the second point which arises in the case before us. The learned Judges have expressed an opinion on the second point which supports the view which I have taken. They observe:

We think that the meaning of the section is that the applicant has the option either to deposit the amount of the decree in cash or give security. But if he elects to adopt the latter course, the security must be to the satisfaction of the Court and subject to the Court's directions.

15. They were not called upon to say, and have not said, that the Court should express its satisfaction as to the sufficiency of the security at the time when the application is presented. Having taken the view that the applicant has the option either to deposit the amount in cash or to give security, direction of the Court could have only been meant to refer to the character of the security.

16. For the reasons already stated, while I do not agree with the Court below that any direction of the Court is necessary as to whether the applicant for an order to set aside the ex parte decree should furnish security instead of depositing the decretal amount in cash, or that the applicant must obtain a certificate, so to say, as regards the sufficiency of the security at the time of presenting his application, I maintain the order sought to be revised on the ground, that the applicant should have obtained the direction of the Court as regards the character of the security which he proposed to offer, and that an omission to obtain such direction was fatal to the success of his application.

17. The application in revision is dismissed with costs.


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