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In Re: Chinnathambi Asari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1958)2MLJ594
AppellantIn Re: Chinnathambi Asari
Cases ReferredBalakrishna Ayyar v. Pichamuthu Pillai
Excerpt:
- - 5. it is now settled that the requirements of the proviso to section 17(1) would be satisfied if security be furnished within 30 days, the period prescribed for the making of an application to set aside the decree passed ex parte......finding.3. the application to set aside the decree, having been made on 14th october, 1957, was in time. learned counsel contends however that the application in the lower court should have been dismissed because the defendant (petitioner in the lower court) had not complied with the requirements of the proviso to section 17(1) of the provincial small cause courts act. the proviso enacts:an applicant for an order to set aside a decree passed exparte or for a review of judgment shall, at the time 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.....
Judgment:

Subrahmanyam, J.

1. This is a petition to revise the order passed by the learned Subordinate Judge, Madurai, on 3rd January, 1958, in I.A. No. 316 of 1957, in S.C.S. No. 113 of 1957, setting aside the decree which had been passed ex parte in that suit on 18th April, 1957. The defendant-petitioner in the lower Court alleged that she had not been duly served with surnmons in the suit and that she learnt of the suit and the decree for the first time when she was served with notice of the execution on 30th September, 1957. The application to set aside the decree, was made on 14th October, 1957. The learned Subordinate Judge held that the petitioner in the lower Court (defendant in the suit) had not been duly served with summons in the suit.

2. Learned Counsel for the plaintiff (petitioner in the Civil Revision Petition) contends that the learned Subordinate Judge's finding that the defendant in the lower Court had not been duly served with summons is open to review by this Court. Summons which had been taken to the defendant in the lower Court was returned with the report that a copy was affixed to the residence of the defendant. The defendant's case was that she was not residing at the building to the outer door of which the notice had been affixed. The learned Subordinate Judge accepted the defendant's case on that point and found that the defendant's ordinary place of residence at the time of the alleged affixture of the copy of the summons was not the building to whose door the copy had been affixed. Petitioner's learned Counsel contends that in coming to that conclusion the learned Subordinate Judge has not taken into account some particular piece of evidence. I do not consider that the Subordinate Judge omitted to take note of anything that was material and see no reason to interfere with the finding of fact given by him, namely, that the building to whose outer door the notice was affixed was not the place where the defendant was ordinarily residing at the time of the alleged affixture. I see no reason further to disturb the Subordinate Judge's finding on the other question of fact relating to the date of knowledge of the suit on the part of the defendant, namely, that the defendant did not know of the suit or of the decree until she was served with notice of the execution on 30th September, 1957. I accept that finding.

3. The application to set aside the decree, having been made on 14th October, 1957, was in time. Learned Counsel contends however that the application in the lower Court should have been dismissed because the defendant (petitioner in the lower Court) had not complied with the requirements of the proviso to Section 17(1) of the Provincial Small Cause Courts Act. The proviso enacts:

An applicant for an order to set aside a decree passed exparte or for a review of judgment shall, at the time 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.

4. The facts relevant to the learned Counsel's contention are these : On 14th October, 1957, the defendant (petitioner in the lower Court) filed I.A. No. 316 of 1957 tendering a draft security bond. A list of immoveable properties which she offered as security was appended to that application. Notice of the application was ordered to the plaintiff. His objections were heard. On 28th October, 1957, the Subordinate Judge passed an order holding that the properties were sufficient security for the decree, approving the draft security bond and calling for a fair bond by 29th October, 1957. On 28th October, 1957, the fair bond on stamp paper was executed by the defendant (petitioner in the lower Court). The fair bond was filed in Court on the same date, namely, 28th October, 1957, and was checked by the office of the Subordinate Judge. The Subordinate Judge passed an order on 29th October, 1957, accepting the fair security bond. The bond was presented for registration on 30th October, 1957 and was registered on 31st October, 1957. The point is whether, on these facts, the defendant had not furnished security within the time limited by the proviso to Section 17(1) of the Provincial Small Cause Courts Act.

5. It is now settled that the requirements of the proviso to Section 17(1) would be satisfied if security be furnished within 30 days, the period prescribed for the making of an application to set aside the decree passed ex parte. In this case, the fair security bond was filed in Court on 29th October, 1957, that is, within thirty days from the date of knowledge of the decree, which furnishes the starting point for limitation. The security should therefore be held to have been given in time and the proviso to Section 17(1) should be held to have been complied with. But learned Counsel contends that security was not given until the bond had been registered. The registration of the bond was on 31st October, 1957. Learned Counsel's contention is that security could be held to have been given only on the date of the registration of the bond, that is beyond the period of 30 days from date of knowledge of the decree. The point for decision thus resolves itself into whether, in the case of a bond which is given and accepted,within the period of 30 days but which, requiring registration, is registered after the expiry of 30 days, the requirements of the proviso to Section 17(1) may be held to have been complied with.

6. In relation to a registered document, Section 47 of the Indian Registration Act enacts that it:

shall operate from the time from which it would have commenced to. operate if no registration thereof had been required or made and not from the time of its registration.

7. The effect of Section 47 thus is that the bond with which we are dealing in this case, which was executed on 28th October, 1957 and which was registered on 31st October, 1957s commenced to operate from 28th October; 1957. It commenced to operate from 28th October, 1957 and was accepted on 29th October, 1957. It must therefore be deemed to have been given on 29th October, 1957 that is, withiii the period of 30 days.

8. Learned Counsel, however, refers to the decision in Penchalu v. Subbareddi : AIR1943Mad520 , where the learned Judges approved of the ruling in Balakrishna Ayyar v. Pichamuthu Pillai (1921) 15 L.W. 186, and said that 'it (draft security bond) could not have the effect of a security bond duly executed and registered, which alone could be enforced' and that the security bond would have no value unless it had been registered. The question, namely, whether the document, once it has been registered, does not speak from the date of its execution, did not arise for consideration and was not considered in that case. The ruling of Ramesam, J., in Balakrishna Ayyar v. Pichamuthu Pillai (1921) 15 L.W. 186 approved in the Division Bench ruling referred to above, dealt with a case where the decree ex parte had been made on 26th January, 1920 and the draft security bond had been filed in Court on 6th February, 1920 and the fair bond on 1st April, 1920. On the facts of that case the fair security bond was not filed until after the time for applying for setting aside the decree had expired. Therefore, the question of the date of registration, and indeed the question whether the document was registered at all, became immaterial. The filing of the fair bond was itself beyond the period prescribed for setting aside the decree. Learned Counsel referred to various other rulings, which it is unnecessary that I specify, in which it was held that a security bond which required registration but which had not been registered could not be regarded as satisfying the requirements of the proviso to Section 17(1).

9. I find that the security bond in this case, which was registered on 31 st October, 1957, took effect from 28th October, 1957 and had been accepted on 29th October, 1957, within the period prescribed for filing an application to set aside the decree which had been made ex parte and that the petitioner in the lower Court (defendant in the suit) had, therefore, furnished security within the time allowed by the proviso to Section 17(1) of the Provincial Small Cause Courts Act.

10. The Judgment appealed from is correct. The petition is dismissed.


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