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Tarapada Ghose Vs. Jagat Mohini Dasi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in42Ind.Cas.751
AppellantTarapada Ghose
RespondentJagat Mohini Dasi
Cases Referred and Suryanarayana v. Ramanna
Excerpt:
provincial small cause courts (act ix of 1887), section 17, 25 - ex parte decree, setting aside of--requirements of section 17, non-compliance with, effect of--revision--high court, power of. - .....invited in tins rule to set aside an order of a small cause court judge, which sets aside an ex parte decree under section 17 of the provincial small cause courts act. the ground assigned is that the order has been made though the requirements of that section have not been fulfilled. it appears that the ex parte decree was made on the 26th august 1915. on the 30th november 1915 the defendant made an application to set aside the ex parte decree, and, as required by the proviso to sub-section (1) of section 17, filed along with the application what purported to be a security bond to cover the amount due under the decree. by this instrument, immoveable property was offered as security, the document and the title-deeds of the properties offered by way of security were examined by an.....
Judgment:

1. We are invited in tins Rule to set aside an order of a Small Cause Court Judge, which sets aside an ex parte decree under Section 17 of the Provincial Small Cause Courts Act. The ground assigned is that the order has been made though the requirements of that section have not been fulfilled. It appears that the ex parte decree was made on the 26th August 1915. On the 30th November 1915 the defendant made an application to set aside the ex parte decree, and, as required by the proviso to Sub-section (1) of Section 17, filed along with the application what purported to be a security bond to cover the amount due under the decree. By this instrument, immoveable property was offered as security, The document and the title-deeds of the properties offered by way of security were examined by an officer of the Court and he reported in favour of their sufficiency. The document was then placed before the Judge who, on the day following, accepted the report of the officer. Nothing was done subsequently by the defendant till the 20th May 1916, when she obtained a return of the document for registration in accordance with law. The document was duly presented, but the registering officer declined to register it on the ground that it had not been presented within the time allowed by law, namely, four months from the date of execution. The position, consequently, was that on the day when the application to set aside the ex parte decree was taken up for disposal, that is, on the 24th June 1916, there was no valid security bond before the Court. No doubt, security had been offered, the value had been tested, and the document had been approved by the Court, but steps had not been taken by the applicant to have it registered, so as to make it a document operative in law. Notwithstanding the protest of the plaintiff decree-holder, the Court proceeded to hear the application and came to the conclusion that, as the summons was not served on the petitioner, the ex parte decree must be set aside. The Court then proceeded to give the following direction 'Although the security given and accepted by the Court was not registered, the plaintiff will not at all be prejudiced when the same property has been attached. This application is granted and the attachment shall subsist until the disposal of the suit. Fresh security be given within a fortnight.' It is worthy of note that the attachment, which had been effected at the instance of the decree-holder, came to an end as soon as the ex parte decree was set aside, and it was not competent to the Judge to order that the attachment shall subsist thereafter, though it might have been open to him to make an order for attachment before judgment if an application in that behalf was made by the plaintiff and the requisite grounds were established for that purpose. The substance of the matter thus is that the Judge has set aside the ex parte decree, although no security has been given by the defendant. The question arises whether this order can be sustained.

2. On behalf of the defendant, it has not been disputed that the requirements of Section 17 are mandatory, as has been laid down in the cases of Jogi Ahir v. Bishen Dayal Singh 18 C. 83: 9 Ind. Dec. (N. S.) 56., Jeun Muchi v. Bhudhiram Muchi 32 C. 339: 1 C. L. J. 43., Basiruddin Mondal v. Sonaulla Mondal 6 Ind. Cas. 154: 15 C. W. N. 102., Somabhai v. Wadi Lal 9 Bom. L. R. 883., Jagan Nath v. Chet Ram 28 A. 470: 3 A. L. J. 318: A. W. N. (1906) 93. and Suryanarayana v. Ramanna 6 Ind. Cas. 400: 34 M. 88: 17 M. L. J. 308: (1910) M. W. N. 279. This position is not and cannot be disputed. But we are pressed not to interfere in the exercise of our revisional jurisdiction, because, it is asserted, no injury will be done to the plaintiff. It is said that all that the Court has done is to direct a retrial and if the plaintiff has got a good case, he will, no doubt, succeed again. In our opinion, this view should not be adopted in this case. The plaintiff, who got the ex parte decree, had obtained a valuable right, subject, no doubt, to the liability to have the decree vacated at the instance of the defendant, if the mandatory requirements of Section 17 were fulfilled. There has, however, been no compliance with these essential pre-requisites. No explanation, plausible or otherwise, had even been offered to show how the security bond came to remain in Court for so many months after it had been approved and why steps were not taken in time to have it registered.

3. In these circumstances, we must decline to yield to the invitation of the defendant to ignore the mandatory requirements of the law in the manner suggested.

4. We hold accordingly that this Rule must be made absolute, the order of the Small Cause Court Judge dated the 24th June 1916, cancelled and the ex parte decree restored. There will be no order for costs in these proceedings.


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