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Ram Saran Dass Tara Chand Vs. Ram Richhpal L. Mannu Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 121-D of 1957 and C.M. No. 1584-D of 1960
Judge
Reported inAIR1963P& H206
ActsProvincial Small Cause Courts Act, 1887 - Sections 17, 17(1) and 25; Code of Civil Procedure (CPC) , 1908 - Order 22
AppellantRam Saran Dass Tara Chand
RespondentRam Richhpal L. Mannu Lal and anr.
Appellant Advocate C.B. Chopra, Adv.
Respondent Advocate D.D. Chawla and; Maharaj Kishan Chawla, Advs.
DispositionRevision allowed
Cases Referred and Bhagawat Chaudhri v. Balkaran Saithwar
Excerpt:
.....and the matter can be heard on merits, 4. on merits, it seems to me that the learned trial judge has taken too strict and too literal a view of the provisions of section 77. the object of section 17 is to prevent the filing of frivolous petitions for setting aside an ex parte decree incases where the judgment-debtor has been negligent or has deliberately remained away from court, money suits are treated on a priority basis, and where a money decree has been passed by a court of small causes, no appeal is competent......the plaintiff, who is the respondent before me brought a suit for the recovery of rs. 320/-. an ex parte decree for rs. 377/4/-was passed in his favour on 18-7-1956. on the same day the judgment-debtor applied for setting aside the ex parte decree and in accordance with the provisions of section 17 of the provincial small cause courts act deposited a sum of rs. 360/-along with his application. under the provisions of section 17 he was required to deposit the decretal amount. the decree-sheet at that time had not been prepared, and the judgment-debtor, while depositing the amount of rs. 360/-, did not take into account two miscellaneous items of rs. 14/12/-and rs. 5/8/-.when the decree-sheet was prepared, it was found that the amount deposited was short by rs. 17/4/- (the figure is.....
Judgment:
ORDER

G.D. Khosla, C.J.

1. This revision petition arises out of an order made by the Court of Small Causes. The facts briefly are that the plaintiff, who is the respondent before me brought a suit for the recovery of Rs. 320/-. An ex parte decree for Rs. 377/4/-was passed in his favour on 18-7-1956. On the same day the judgment-debtor applied for setting aside the ex parte decree and in accordance with the provisions of Section 17 of the Provincial Small Cause Courts Act deposited a sum of Rs. 360/-along with his application. Under the provisions of Section 17 he was required to deposit the decretal amount. The decree-sheet at that time had not been prepared, and the judgment-debtor, while depositing the amount of Rs. 360/-, did not take into account two miscellaneous items of Rs. 14/12/-and Rs. 5/8/-.

When the decree-sheet was prepared, it was found that the amount deposited was short by Rs. 17/4/- (the figure is wrongly given in the order of the Additional Judge, Small Cause Court, and the revision petition as Rs. 14/7/-). The question accordingly arose whether the application for setting aside the ex parte decree should be entertained or not. The Additional Judge, Small Cause Court, took a strictly literal view of Section 17 and, holding that the entire decretal amount had not been deposited by the judgment-debtor, declined to entertain the application and rejected it. Against this order the judgment-debtor brought a revision petition to this Court.

2. The decree was in favour of two persons, Ram Nath and Ram Rachhpal, jointly. Of these, Ram Rachhpal died, after the petition had been filed in this Court, on 19-6-1959. No application to bring his legal representatives on record was made by the petitioner and so objection was taken that the revision petition had abated under the provisions of Order 22, Rule 4, Civil Procedure Code. As against this, it was urged that the provisions of Order 22, Civil Procedure Code, do not apply to revision petitions and that their application is confined to suits and appeals.

3. The preliminary matter before me, therefore, is whether the petition can be said to have abated or not. A reference to Order 22, Civil Procedure Code, shows that it relates only to suits and appeals. The main body of the Order speaks of suits, and Rule II covers the question of appeals. Nothing whatsoever is said about revision petitions. The decree of the Judge, Small Cause Court, in the present case, is a final decree. No appeal lies from this decree and, therefore, it cannot be said that the proceedings of the trial Coutt are being continued in this Court. An appeal is always a continuation of the suit, but a revision petition cannot be said to be so. A Full Bench of the Rajasthan High Court took this view in Babulal v. Mannilal, AIR 1953 Raj 169. The learned Judges of that Court held that a revision is a discretionary remedy and Order 22, Civil Procedure Code, applies to the cases of suits and by virtue of Rule 11 also to the cases of appeals; it does not govern the cases of revision application.

The same view was expressed by the Lahore High Court in a Full Bench decision, Mohd. Sadaat Ali Khan v. Administrator, Corporation of City of Lahore, AIR 1949 Lah 186. With great respect I find myself in agreement with the views expressed by the learned Judges in these two Full Bench cases. Therefore, the failure of the petitioner to bring on record the legal representatives of Ram Rachhpal, does not result in the abatement of the petition and the matter can be heard on merits,

4. On merits, it seems to me that the learned trial Judge has taken too strict and too literal a view of the provisions of Section 77. The object of Section 17 is to prevent the filing of frivolous petitions for setting aside an ex parte decree incases where the judgment-debtor has been negligent or has deliberately remained away from Court, Money suits are treated on a priority basis, and where a money decree has been passed by a Court of Small Causes, no appeal is competent. Also when an ex parte decree is passed, an application to set aside the ex parte decree will oat be entertained unless in accordance with the provisions of Section 17 the decretal amount is deposited. This merely means that the judgment-debtor should, as guarantee of his bona fides, deposit the money which is due to the decree-holder. It was not intended that there should be a literal compliance with the provisions of this section where such literal compliance will have the result of defeating tie ends of justice. In the present case the decree-sheet had not been prepared. It was not known what the amount due to the decree-holder was. The judgment-debtor made an estimate and allowed for all possible items that he could think of. He then deposited the amount calculated by him in Court. The plaintiff's claim was for Rs. 320/-. The judgment-debtor deposited Rs. 360/- allowing Rs. 40/- for costs. The costs, as actually calculated when the decree-sheet was prepared, came to Rs. 57/4/-. The extra items were service of process Rs. 14/12/- and miscellaneous Rs. 5/8/-. In the circumstances, I must hold that the judgment-debtor complied substantially with the requirements of Section 17. In the two rulings cited by the trial Judge, Purna Chandra v. Rassoraj Pramanik, 33 Ind Cas 133 : (AIR 1916 Cal 464 (2) ), and Bhagawat Chaudhri v. Balkaran Saithwar, 65 Ind Cas 596 : (AIR 1922 All 29). It was held that a substantial compliance with the provisions of Section 17 is not sufficient, but it seems to me that to take too literal a view of the wording of this section would entail undue hardship and injustice upon a party who could not possibly know at the time of making the application what was the exact decretal amount. This is exactly what happened in the present case.

5. I must, therefore, hold that the trial judge was wrong in refusing to entertain the application for setting aside the ex parte decree against the petitioner, and allowing this petition remand the case to the trial Court for the decision of this application upon merits.

6. The costs in this Court will be costs in the suit.


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