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Ethiyappa Gramany and ors. Vs. Angappa Maistry - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1930Mad658
AppellantEthiyappa Gramany and ors.
RespondentAngappa Maistry
Cases ReferredKaliaperumal Naidu v. Ponnusami Chettiar A.I.R.
Excerpt:
- - it is difficult to gee how such a plea can be advanced in face of the perfectly plain language of the section; suppose that the petitioner elects to furnish a draft security, and before it is tested the time expires, what good then is his option? the fact is, that circumstances necessitate the direction of the court and that is precisely why the statute provides for such direction. the proviso therefore must be taken to mean that the nature and kind of the security must be according to the direction of the court which should also be satisfied as regards its sufficiency......however, would have it that the court has no discretion at all and whether he furnishes security or deposit is entirely within his own option. it is difficult to gee how such a plea can be advanced in face of the perfectly plain language of the section; nor could such an option ever prevail in practice. suppose that the petitioner elects to furnish a draft security, and before it is tested the time expires, what good then is his option? the fact is, that circumstances necessitate the direction of the court and that is precisely why the statute provides for such direction. in jhaboo misir v. havaldar ternary : air1929all810 it is held that the proviso to section 17 is ambiguous and obscure, and the words 'as the court may direct,' have no grammatical relation to the.....
Judgment:

Jackson, J.

1. The petitioner seeks to revise the order of the District Munsiff of Madurantakam at Chingleput dismissing an application to set aside an exparte decree under Section 17, Provincial Small Cause Courts Act.

2. The petitioner alleging that he had come to know of the decree only twelve days back applied on 27th September 'to have it set aside. The District Munsiff on 1st October ordered the petitioner to deposit the amount, as there was not time to test the draft security tendered. It was a suit disposed of in March and the records had to be got from the District Court. It has been held in Assam Mahomed Sahib v. Rahim Sahib [1920] 43 Mad. 579 that security need not be given along with, the application, provided that it is all complete and in order within the month prescribed by Article 164, Lim. Act. If the District Munsiff thinks it improbable that ha will get the testing done within the period it is certainly within his discretion to say so and ask for a deposit, and he exercises that discretion entirely in the petitioner's favour. To set about testing the security and then to announce that the time had expired would work great hardship. And assuming that the petitioner has adequate security it is difficult be see how the demand for a deposit can unsuit him; for it is only a direction that he raise money in the open market upon security which he avers to be amply sufficient. It practically amounts to telling him to test the security for himself, and if he cannot raise the money it seems almost proof positive that the security is not sufficient. I do not find therefore that the learned District Munsiff did not exercise his discretion under Section 17 according to law.

3. The petitioner, however, would have it that the Court has no discretion at all and whether he furnishes security or deposit is entirely within his own option. It is difficult to gee how such a plea can be advanced in face of the perfectly plain language of the section; nor could such an option ever prevail in practice. Suppose that the petitioner elects to furnish a draft security, and before it is tested the time expires, what good then is his option? The fact is, that circumstances necessitate the direction of the Court and that is precisely why the statute provides for such direction. In Jhaboo Misir v. Havaldar Ternary : AIR1929All810 it is held that the proviso to Section 17 is ambiguous and obscure, and the words 'as the Court may direct,' have no grammatical relation to the alternatives of deposit and security. The direction, contemplated does not relate to the security being to the satisfaction of the Court and to say: 'to give security to the satisfaction of the Court as the Court may direct' would be very clumsy and a construction never intended by the framers of the proviso. The proviso therefore must be taken to mean that the nature and kind of the security must be according to the direction of the Court which should also be satisfied as regards its sufficiency.

4. With all respect I see no distinction between the rejected interpretation, to give security to the satisfaction of the Court as the Court may direct, and the accepted interpretation, to give security to the satisfaction of the Court of a nature and kind as the Court may direct.

5. Nor do I see the practical difficulty which has led to this endeavour to read additional words into the plain and grammatical sense of the statute. It is suggested that a petition accompanied with a cash deposit need no direction of the Court, and therefore 'as the Court may direct' can have no application to deposits. But this case affords an example where the direction of the Court might have been required. Suppose the petitioner had replied to the Courts' order. 'I will make the deposit but please direct that I may substitute security when it is proved sufficient.' The Court, under the proviso, could give this direction, which would be a very just conclusion of the matter. Kaliaperumal Naidu v. Ponnusami Chettiar A.I.R. 1925 Mad. 647 merely follows the general principle that the Court in the exercise of a discretion must act judicially and not arbitrarily. I have shown above that the Court had sound reason in the present case for demanding a deposit, and cannot be said not to have acted judicially.

6. For the above reasons. I decline to interfere. The petition is dismissed.


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