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Karam Chand Mohan Singh Vs. Basheshwar Nath and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 34 of 1970
Judge
Reported inAIR1973HP9
ActsProvincial Small Cause Courts Act, 1887 - Section 17; ;Code of Civil Procedure (CPC) , 1908 - Order 9, Rule 9
AppellantKaram Chand Mohan Singh
RespondentBasheshwar Nath and Co.
Appellant Advocate H.S. Thakur, Adv.
Respondent Advocate Kailash Chand, Adv.
DispositionRevision allowed
Cases ReferredKhetra Dolai v. Mohan Bissoyi
Excerpt:
- .....this is a revision application under section 25 of the provincial small cause courts act2. an ex parte decree was passed against the applicant on may 3, 1970. on june 8, 1970. the applicant applied for setting aside the ex parte decree and an application was also made for permission to file security in lieu of the actual decretal amount. along with the application a surety bond for rs. 2,000/- was also filed. it is not disputed that the amount of the surety bond more than covers the decretal amount. the learned judge. small causes has dismissed the application for setting aside the ex parte decree on the ground that before furnishing the security in lieu of the decretal amount the applicant should previously have obtained an order from the court permitting him to do so. the application.....
Judgment:

R.S. Pathak, C.J.

1. This is a revision application under Section 25 of the Provincial Small Cause Courts Act

2. An ex parte decree was passed against the applicant on May 3, 1970. On June 8, 1970. the applicant applied for setting aside the ex parte decree and an application was also made for permission to file security in lieu of the actual decretal amount. Along with the application a surety bond for Rs. 2,000/- was also filed. It is not disputed that the amount of the surety bond more than covers the decretal amount. The learned Judge. Small Causes has dismissed the application for setting aside the ex parte decree on the ground that before furnishing the security in lieu of the decretal amount the applicant should previously have obtained an order from the Court permitting him to do so. The application for permission to furnish the security has also been dismissed.

3. It is contended by learned counsel for the applicant that the court below has erred in law in rejecting the applications merely because permission to furnish security was not obtained before presenting the application for set-tine; aside the ex parte decree and fur-nishing the security. It is pointed out that the application to set aside the ex parte decree as well as the application for permission to furnish security and the security itself were presented within the period of limitation prescribed for an application to set aside an ex parte decree. After hearing learned counsel for the parties. I am of opinion that the contention must be upheld.

4. Section 17 of the Provincial Small Cause Courts Act. 1887 provides:

'(1) The procedure prescribed in the Code of Civil Procedure, 1908, shall savein so far as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Causes in all suits cognizable by it. and in all proceedings arising out of such suits:

Provided that an applicant for an order to set aside a decree passed ex parte op 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 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.

(2) Where a person has become liable as surety under the proviso to Sub-section (1), the security may be realised in manner provided by Section 145 of the Code of Civil Procedure, 1908.'

It is true that the proviso to Sec. 17 (l) requires that when an application is made to set aside an ex parte decree the applicant must 'at tile time of presenting his application' deposit in Court the decretal amount or security lor the performance of the decree if 'on a previous application made by him in this behalf' the Court directs him to furnish secu-rity. The statute contemplates that the applicant must deposit the decretal amount in Court, unless the Court permits him to furnish security in lieu of such deposit There can be no dispute that whether he will deposit the decretal amount or furnish the security has not been left to his choice. The statute requires in the first instancy that the de-cretal amount should be deposited. If, however, the Court permits the applicant to furnish security instead, then alone he may do so. Upon the material on the record before me it is clear that the applicant filed an application stating that he was unable to deposit the decretal amount and. therefore, he should be allowed to furnish security for payment of the decretal amount. That application was filed alone with the application to set aside the ex parte decree. The question is whether it is necessary, in order to comply with the proviso to Section 17 (1), that the application for permission to furnish, security should be made before presenting the application to set aside the ex parte decree. The proviso to Section 17 (1) should not. in my opinion, be applied mechanically. It is a procedural provision and. therefore, to be applied liberally. What is Intend ed is substantial compliance. There is no reason in law why the application for permission to furnish security cannot be made along with the application to set aside the ex parte decree. In Ram Bharose v. Ganga Singh. AIR 1931 All 727 Sulaiman, Acting Chief Justice, commented on the unhappy language of the proviso to Section 17. and appeared to be of opinion that an application for permission to furnish security could be made at the time of presenting the application to set aside the ex parte decree. Boys. J. also took the same view in that case. He observed that the application to set aside the ex parte decree must be made within the prescribed period of thirty days either with cash Or with the statement that the applicant was prepared to give security and in the latter case he could also tender the security he proposed and ask for the direction of the court in the matter. I am unable to agree, with respect, with the view to the contrary taken by the learned single Judge of the Orissa High Court in Khetra Dolai v. Mohan Bissoyi, AIR 1961 Orissa 37.

5. In my judgment, the applicant was entitled to file an application for permission to furnish security when he presented the application for setting aside the ex parte decree.

6. Accordingly the revision application is allowed. The order of the learned Judge. Small Causes is set aside. The learned Judge is directed to consider the application for permission to furnish security in lieu of depositing the decretal amount, and if that application is allowed and the security furnished found sufficient to consider thereafter the application for setting aside the ex parte decree. The applicant is entitled to his costs.

7. The parties will appear before the learned Judge. Small Causes, on August 7, 1972.


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