1. This matter comes upon reference by the Additional District Munsif of Nellore on account of a difference of opinion between him and the Court Fee Examiner.
2. The facts out of which this reference arises are these. A small cause decree was passed ex parte for Rs. 155-10-0. The defendant then put in a petition to set aside the ex parte decree and filed along with it a security bond executed by a surety for the performance of the decree. It looks as if the security bond was/not originally stamped at all, but, when the petition came on before the Court, the Court ordered the petitioner to affix the usual court-fee stamp of 8 annas to the security bond which was the practice of that Court. The decree has been set aside and the suit restored.
3. The Court Fee Examiner now thinks that the stamp to be affixed to the security bond is not 8 annas stamp under Article 6 of Scheduld II of the Court Fees Act, but a stamp of Rs. 1-4-0 under Article 15 of the Stamp Act. Now Article 15 of the Stamp Act does not apply if the Court Fees Act applies. So we have first to see whether Article 6 of Scheduld II of the Court Fees Act applies or not. For the Court Fees Act to apply two conditions must be satisfied (1) the order setting aside the ex parte decree must be an order passed under the Civil Procedure Code, and (2) the bond must be given in pursuance of an order made by a Court. It is true that the order was passed under Section 17 of the Provincial Small Cause Courts Act but it seems to me that nevertheless it is also an order passed under the Civil Procedure Code. The Civil Procedure Code, is a general Act of procedure applicable to the Civil Courts in India. The Provincial Small Causes Courts Act is a kind of supplemental Act indicating the special procedure to be followed in Small Cause Courts which are Civil Courts. Order 50, Civil Procedure Code, gives a list of certain provisions of that Code which are not applicable to Provincial Small Causes Courts. This indicates two things: first that the Civil Procedure Code, itself governs the procedure of Small Cause Courts to some extent and secondly that the provisions not included in the list apply to Small Causes Courts and one of them is Order 9, Rule 13. So, when a Small Cause Court sets aside an ex parte decree, it is really under Order 9, Rule 13, Civil Procedure Code. Again Section 17 of the Provincial Small Causes Courts Act itself makes the procedure under the Civil Procedure Code applicable to Small Cause Courts. Either way we come to the conclusion that the Provincial Small Causes Courts Act is supplemental to the Civil Procedure Code. But it is said by the Court Fee Examiner that this order is under the proviso to Section 17 and not under the first part of the section. The proviso does not add to the section but only cuts down the very wide discretion which Courts have under Order 9, Rule 13, Civil Procedure Code in setting aside an ex parte decree, and in imposing terms upon the petitioner. Under the proviso the petitioner should either deposit the decree amount or give security. No other alternative, such as that no condition need be imposed at all, is allowed.
4. I am therefore clearly of opinion that the order passed is an order under the Civil Procedure. Code.
5. On account of the somewhat inconsistent and therefore obscure language of Section 17 of the Provincial Small Causes Courts Act there is some difficulty as to the exact procedure to be followed by a petitioner. This obscurity has been caused by the words:
Shall, at the time of presenting his application, either deposit in Court...as the Court may direct.
6. The section contemplates some direction of the Court and the petitioner obeying that direction. The earlier part says that the petitioner shall deposit money or give security at the time of presenting the application. There is an apparent difficulty in obeying both these directions. This obscurity has been noticed by most Courts which deal with this section and deserves being cleared up by the legislature. Most Courts have attempted a practical solution. It is unnecessary to discuss; this matter at great length in this case but it seems to me that when a party applies to set aside an ex parte decree it may be regarded as consisting of two parts; first a preliminary application to get a direction of the Court with a view to get the ex parte decree set aside and secondly after obeying the direction of the Court the actual application to set aside the ex parte decree. The second part follows only after obeying the directions of the Court. Looked at in this way the party first applies. Where he deposits money, there is no further difficulty; but where he is unable to do so he seeks the direction of the Court. The Court may now direct the party either to deposit money or to give security in some form. He should now obey the direction and when the matter again comes up before the Court it is then we have the actual application to set aside the decree and it may be said that he has either deposited money or given security with the application. However in whatever from the Court's direction is obtained and complied with, the bond would be in pursuance of an order made by Court within the meaning of Article 6 of Scheduld II of the Court Fees Act.
7. I have indicated the general construction of the Article without reference to the particular facts of this case. In this particular case it would appear that the Court actually asked the petitioner to supply a court-fee stamp of 8 annas. That would certainly be an order of the Court. Even in cases where the petitioner tenders a security along with the very first application without a previous order of the Court, if the Court orders notice on it to the opposite party and passes final orders setting aside the ex parte decree having found sufficient cause, it amounts to an order of Court. The acceptance by the Court of a bond previously furnished is equivalent to an order of the Court followed by compliance with it.
8. In my opinion, therefore, Article 6 of Scheduld II of the Court Fees Act applies to the case and the bond should be stamped with an 8 annas stamp.
9. So far I have arrived at the conclusion without referring to any decision. My conclusion is in accordance with the Full Bench decision in Re The District Munsif of Tiruvallur I.L.R. (1911)Mad. 17 : 24 M.L.J. 637 where it was held that a bond given in pursuance of rules made under the Code should be deemed to be given in pursuance of an order made by the Court. The conclusion in Amirthammal v. Ramalinga Goundan I.L.R.(1920)Mad. 363 : 38 M.L.J. 503 is also similar so far as the Court Fees Act is concerned. The question of the application of Article 40 of Stamp Act does not arise in the present case. The conclusion in Reference from the Munsif, Habiganj, Re I.L.R. (1925)Cal. 101 is also similar. But no question now arises with reference to Article 57 of the Stamp Act. There is a circular of the Madras. High Court (P. Dis. No. 265 of 1929, dated 23rd March, 1929) which practically adopts the above conclusion. This must have: been overlooked by the court-fee examiner.
10. I answer the reference accordingly.
Horace Owen Compton Beasley, Kt., C.J.
11. I agree.
12. I agree