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Brindrabanprasad Ambikaprasad Ahwasi Vs. Dashrath Ramratan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 585 of 1963
Judge
Reported inAIR1966MP211
ActsProvincial Small Cause Courts Act, 1887 - Sections 17
AppellantBrindrabanprasad Ambikaprasad Ahwasi
RespondentDashrath Ramratan
Appellant AdvocateK.B. Sinha, Adv.
Respondent AdvocateSohan Choudhary, Adv.
DispositionApplication allowed
Cases ReferredIn Chaudhari Maniklal v. Khushal Mali
Excerpt:
.....presented, there could be no validly instituted proceedings for the setting aside of the ex parte decree. 6. in the instant case, the application was made practically on the first day of limitation but the security was furnished well beyond the period of thirty days provided for the making of the application. the application filed on 26-4-1963 under order 9, rule 13 of the code of civil procedure for the purpose of setting aside the ex parte decree in question was thus an ineffectively presented application and in so far as there was no effectively presented application, the trial court could not proceed to determine whether the ex parte decree could validly be set aside. consequently, even if the application became an effectively presented application as from that dale, it could..........application for revision are as follows :the plaintiff-decree-holder, on 25-4-1963, obtained an ex parte decree against the defendant-judgment-debtor in the court of the small causes at jabalpur. the defendant-judgment-debtor, on 26-4-1963, filed two applications--one, for selling aside the ex parte decree under order 9, rule 13 of the code of civil procedure and the other, presumably under section 17 of the act, praying that he be permitted to give such security for the performance of the decree as the court may please in lieu of depositing the decretal amount in court. no orders were passed on the application for giving security in lieu of depositing the decretal amount in court till 10-9-1963 on which date the court directed the defendant-judgment-debtor to furnish a solvent security.....
Judgment:
ORDER

T.P. Naik, J.

1. This is an application for revision under Section 25 of the Provincial Small Cause Courts Act, 1887 (Hereinafter called 'the Act') filed by the plaintiff-applicant (decree-holder) .

2. The circumstances giving rise to this application for revision are as follows :

The plaintiff-decree-holder, on 25-4-1963, obtained an ex parte decree against the defendant-judgment-debtor in the Court of the Small Causes at Jabalpur. The defendant-judgment-debtor, on 26-4-1963, filed two applications--one, for selling aside the ex parte decree under Order 9, Rule 13 of the Code of Civil Procedure and the other, presumably under Section 17 of the Act, praying that he be permitted to give such security for the performance of the decree as the Court may please in lieu of depositing the decretal amount in Court. No orders were passed on the application for giving security in lieu of depositing the decretal amount in Court till 10-9-1963 on which date the Court directed the defendant-judgment-debtor to furnish a solvent security in the sum of Rs. 200 within three days from the date of that order.

3. The plaintiff-decree-holder has come up to this Court for revising the aforesaid order inter alia, contending that the Court below had no jurisdiction to proceed with the trial of the case, as the mandatory provisions of Section 17 of the Act had not been complied with by the defendant-judgment-debtor.

4. The proviso to Section 17 of the Act says that

'an applicant for an order to set aside a decree passed ex parte . . . shall, at thetime of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed'.

It is thus clear that an applicant applying for an order to set aside an ex parte decree must, at the time of presenting his application, do one of the two things, namely, either deposit in Court the amount due from him under the decree, or Rive such security for the performance of the decree as the Court may, on a previous application made by him in this behalf, have directed. So that, he must either deposit the decretal amount in cash along with his application to set aside the ex parte decree, or give a security instead, provided, however, that he had made a previous application and succeeded in getting an order of the Court permitting him to give the security instead of depositing the decretal amount in cash. It is not open to the Court to extend the time within which the deposit is to be made or the security is to he furnished.

5. Even before the amendment of 1935, in Umrao Jiwan Patel v. Munnumian Musalman, (1906) 2 Nag LR 23 it had been held that the proviso to Section 17 of the Act, was mandatory and that it was a condition precedent to the granting of a new trial that the applicant should when presenting the application, either deposit the decretal amount in Court or give security for the performance of the decree. The same view was reiterated in Chandulal v. Uttamchand, (1930) 26 Nag LR 63 : (AIR 1930 Nag 137). In Chaudhari Maniklal v. Khushal Mali, (1933) 29 Nag LR 104 : (AIR 1933 Nag 102), it was pointed out that in case the applicant had, at the time of presenting his application, not deposited the decretal amount in cash, nor given the security as per the direction of the Court, his application could be treated as an ineffectively presented application, which could be made good by his depositing the decretal amount in cash or by his giving the necessary security, provided this was done within the limitation prescribed for the making of the application. The position, therefore, remains that whether the decretal amount is deposited in cash or a security furnished for it, it must be done within j the time prescribed for the making of the application. Because if either of these things is not done, the application cannot be effectively presented; and unless an application was effectively presented, there could be no validly instituted proceedings for the setting aside of the ex parte decree.

6. In the instant case, the application was made practically on the first day of limitation but the security was furnished well beyond the period of thirty days provided for the making of the application. The application filed on 26-4-1963 under Order 9, rule 13 of the Code of Civil Procedure for the purpose of setting aside the ex parte decree in question was thus an ineffectively presented application and in so far as there was no effectively presented application, the trial Court could not proceed to determine whether the ex parte decree could validly be set aside. The furnishing of the requisite security on or about 10-9-19G3 could not help the defendant-non-applicant (judgment-debtor) as on that date the period of limitation for the filing of the application had long passed. Consequently, even if the application became an effectively presented application as from that dale, it could not help the non-applicant (judgment-debtor) as on that date it was barred by time.

7. I am informed that subsequent to the order passed on 10-9-1963 the requisite security had been furnished and in the trial, which had taken place thereafter, it had been decided that the ex parte decree may be set aside. In my opinion, as the trial was held without jurisdiction, the whole proceedings shall have to be quashed.

8. The application for revision is, therefore, allowed. The order of the Court below, dated 10-9-1963, is set aside and the application of the defendant-non-applicant (judgment-debtor), dated 26-4-1963, for setting aside the ex parte decree is dismissed. There shall, however, be no order as to costs in these proceedings.


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