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Hajijiwakhan Vs. Gulabchand Harakchand and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 325 of 1958
Judge
Reported inAIR1961MP2
ActsProvincial Small Cause Courts Act, 1887 - Sections 17 and 25
AppellantHajijiwakhan
RespondentGulabchand Harakchand and anr.
Appellant AdvocateR.G. Waghmar, Adv.
Respondent AdvocateK.S. Vaidya, Adv.
DispositionRevision dismissed
Cases ReferredDadoo Baloji v. Kanhaialal.
Excerpt:
.....and therefore, the proceedings were bad ab initio, and the application for setting aside the ex parte decree should have been dismissed in limine. so that ruling had not in any manner varied the view held in the nagpur high court, and contained in air 1947 nag 26, as well as some earlier judgments. order 41 rule 5(3) runs--no order for stay of execution shall be made .unless the court making it is satisfied .that security had been given by the applicant for due performance of such decree or order as may 'ultimately be binding upon him'.the proviso to section 17 runs: the point is that in both, the security bond becomes one properly speaking, only when the court on being satisfied with it, passes an order 'accepted it'.as stated in the nagpur ruling--the giving of a security bond .is a..........in a small cause suit from the order of the small cause court. indore setting aside an ex parte decree granted in his favour on an application by the defendant under section 17 of the provincial small cause courts act. it is urged that the order is not in accordance with law, on the following grounds (i) that the cause shown by the defendant should not have been considered sufficient; (ii) that security was accepted in lieu of cash deposit without a direction tothat effect on a prior application, thus contravening the condition in the proviso to section 17(iii) that the security bond which purports to create a charge on the immovable property of the surety is invalid for want of registration.2. ground no. (i):-- the defendant comes from a distance and he alleges that owing to an.....
Judgment:
ORDER

H.R. Krishnan, J.

1. This is an application by the plaintiff in a small cause suit from the order of the Small Cause Court. Indore setting aside an ex parte decree granted in his favour on an application by the defendant under Section 17 of the Provincial Small Cause Courts Act. It is urged that the order is not in accordance with law, on the following grounds (i) that the cause shown by the defendant should not have been considered sufficient; (ii) that security was accepted in lieu of cash deposit without a direction tothat effect on a prior application, thus contravening the condition in the proviso to Section 17(iii) that the security bond which purports to create a charge on the immovable property of the surety is invalid for want of registration.

2. Ground No. (i):-- The defendant comes from a distance and he alleges that owing to an unforeseen accident, the bus that brought him to Indore, was late; having arrived sometime after the case was called out and disposed of ex parte against him, he filed an application in the Court for leave to give security for the purpose of getting the ex parte decree set aside. This cause has been accepted as sufficient by the Small Cause Court. This is purely a factual matter and cannot be agitated in a revision application. I also note that this ground has not been taken in the revision application.

3. Ground No. (ii):-- The judgment-debtor did apply on 18-10-1955 (which incidentally was the date of the ex parte decree itself), stating that he intended to file an application for the setting aside of the ex parte decree, and he might be given leave to give security instead of making a deposit because he was not in a position to produce the amount in cash. This is a prior application. On the margin of this application, it is written 'Sweekar (allowed)' and below it, there is the designation and date but no signature. The petition itself was undoubtedly filed on that date as in fact this has not been questioned. Three days later, on 28-11-1955 the defendant filed the petition under Section 17 for setting aside of the ex parte decree for the cause already mentioned. Along with it, be filed the security bond 'in accordance with the petition already filed on 18-10-1955'.

The Court sent the bond for verification and after the report was given by the Nazir, accepted it, and started proceedings under Section 17. No doubt, the word 'sweekar' on the margin of the petition of 18-10-1955 has not been initialed by the presiding officer; but the Court accepting the surety bond, is itself an indication that it had allowed the previous application that security might be given. I would hold that the requirements of the proviso to Section 17 have been complied with.

4. Ground No. (iii):-- The ground upon which the applicant in revision has placed most emphasis, is that the bond being unregistered is really no bond at all and therefore, the proceedings were bad ab initio, and the application for setting aside the ex parte decree should have been dismissed in limine. This is a subject on which there was some difference of opinion between the High Courts, but the view held by the Nagpur High Court has been that the bond need not be registered where the furnishing of it is a stage in judicial proceeding, and it is one given in compliance with an order of a Court. Learned counsel for the plaintiff-applicant invited attention to the judgment of this High Court in Manakchand v. Premraj, Second Appeal No. 102 of 1958, D/- 21-9-1959 (MP) where a bond given on behalf of one of the parties was considered invalid and inoperative as it had not been registered.

But as stated in that judgment itself, that case is not at all comparable to the present one. In fact, the Nagpur High Court ruling Dadoo Baloji v. Kanhaialal. AIR 1947 Nag 26, has been considered there, with an express opinion that the cases were not analogous. In the Second Appeal No. 102 of 1958 (MP), the bond was given in course of an arrangement between the parties to a decree with which the Court as such had no direct concern. Nor was it a bond which was to take effect, after, acceptance by the Court; it was one for the satisfaction of the parties themselves. So that ruling had not in any manner varied the view held in the Nagpur High Court, and contained in AIR 1947 Nag 26, as well as some earlier Judgments.

5. The Nagpur case deals with a security bond under Order 41 Rule 5 Civil Procedure Code. The present case deals with a 'bond under the proviso to Section 17 of the Provincial Small Cause Courts Act, but in both the cases, the principle is the same, namely, that the party interested in the stay of the execution or in the setting aside of the ex parte decree, should give security to the satisfaction of the Court for due performance of the decree or order. Order 41 Rule 5(3) runs--

'No order for stay of execution shall be made ..... unless the court making it is satisfied ........... that security had been given by the applicant for due performance of such decree or order as may 'ultimately be binding upon him'.

The proviso to Section 17 runs:

'Provided that an application for an order to set aside decree passed ex parte . ... or give such security for the performance of the decree or compliance with the judgment'.

Thus, the security bond under both these provisions are similar. The point is that in both, the security bond becomes one properly speaking, only when the Court on being satisfied with it, passes an order 'accepted it'. As stated in the Nagpur ruling--

'The giving of a security bond .... .. is a step in judicial procedure before an order for stay can be granted. The execution of a bond does not effect transfer of rights in the immovable property described therein so as to make it available for the .satisfaction of the decree that might be passed by the appellate Court, but it is in order of the Court accepting the bond which creates these rights. The bond docs not become operative unless and until it is accepted by the Court. Accordingly, a secuirty bond hypothecating immovable property executed under Order 41, Rule 5 Civil Procedure Code does not require registration either under the Registration Act, or the Transfer of Property Act'.

The same principles apply to a security Bond tinder Section 37 of the Provincial Small Cause Courts Act.

6. I nm aware that there has been difference of opinion between the High Courts, broadly speaking, Bombay, Allahabad and Nagpur being of the view that such a bond docs not require registration, while Calcutta. Rangoon and Madras have in some cases, taken an apparently different view. I find the Nagpur Bombay view to be more reasonable; in any event, I do not find a justification for departure from the accepted view of the Nagpur High Court, and to hold that the small Cause Court has committed an illegality in accepting the bond.

7. In the result the application in revision isdismissed. Costs and pleader's fee to the non-applicant according to rules.


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