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Civil Revision Petition No. 202 of 1956, decided on 5th March 1957, under section 25 of the Provincial Small Cause Courts Act and section 115 of the Civil Procedure Code for revision of the order of Chaudhri Muhammad Siddiq, Judge Small, Cause Court, Lahore dated the 4th August 1956.

S. 17 proviso‑Application for setting aside ex parte decree‑Decretal amount may be deposited or security furnished, within, period prescribed for making such application.

Held, that proviso to section 17, Provincial Small Cause Courts Act, does not say that where the applicant fails to do either of the things mentioned in the proviso, at the time of presenting his application the setting aside of the ex‑parte decree or the review of judgment becomes barred for ever. The effect of the mandatory provision can only be that the order prayed for by the applicant cannot be made; or at the most, that such an application is not maintainable: There is, however, nothing to prevent a Court from keeping such an application pending until the condition for its maintainability has been fulfilled. Only it cannot keep it pending beyond the period of limitation within which it must be made.

Tarachand‑Hirachand Porwal v. Durappa Tayanappa Patravali A I R 1943 Bom. 237 and Mohan Lal v. Firm Muni Ram‑Nand Lal A I R 1946 Lah. 62 ref.

Muhammad Ramzan Khan v. Khalil Khan I L R 18 Lah. 728 distinguished.

S. M. Rahman Ansari for Petitioner.

Nemo for Respondent.

Date of hearing : 5th March 1957.

Mr. Muhammad Siddiq, Judge, Small Cause Court, Lahore, passed an ex‑parse decree in favour of the respondent Jan Gul Khan on the 23rd of April 1956. The petitioner made an application on the 27th of April 1956 for setting aside the ex‑parte decree. The applica tion was put up before the Court on the following day when the applicant was ordered to deposit the decretal amount in compliance with the provisions of section 17 of the Small Cause Courts Act. The applicant, however, made another application offering to furnish security of the decretal amount and, as required by the Court, he produced security on the same day, i.e., the 28th of April, which was accepted by the Court. The Court framed the following issue on the 19th of May :‑

Is there any sufficient cause for setting aside the ex‑parse decree

The 28th of July 1956 was fixed for evidence when the applicant judgment‑debtor entered the witness‑box and arguments were heard. The learned judge dismissed the application by his order dated the 4th of August 1956 and the judgment‑debtor has come up to this Court in revision.

The issue was found in favour of the petitioner, but the learned judge accepted an objection of the respondent, raised during the arguments, that the application was not maintainable because it had been made a day before the application for furnishing security was made. The proviso to section 17 of the Provincial Small Cause Courts Act upon which the objection was based runs as follows :‑

"Provided that an application for an order to set aside a decree passed ex‑parse 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 previous application made by him in this behalf, have directed."

The lower Court has relied on the ruling of a Division Bench of the late Lahore High Court in Muhammad Ramzan Khan v. Khalil Khan (I L R 18 Lah. 728) wherein it was held that the provision contained in the proviso to section 17 was mandatory and that it was incumbent upon an applicant for either review or setting aside of a decree of a Small Cause Court to do one of the two things, at the time of presenting his application, namely either deposit in the Court the amount due from him under the decree or give such security for the performance of the decree as the Court may have directed on a previous applica tion made by him in this behalf.

This ruling runs counter to the decision of Beaumont C. J. in a case reported as Tarachand Hiraehand Porwal v. Durappa Tayanappa Patravali (A I R 1943 Bom. 237) wherein it was laid down that the provision in question was directory rather than mandatory. The Bombay ruling was subsequently relied by Abdur Rahman J., sitting in Single Bench, in Mohan Lai v. Firm Muni Ram Nand Lal (A I R 1946 Lah. 62). The learned judge distinguished the earlier ruling of the Lahore High Court in Muhammad Ramzan Khan's case on the ground that "the decision in 18 Lah. 728 is not, however, applicable as no security had been furnished by the petitioner in that case within the 15 days prescribed by law while in the present case security was furnished by the petitioner within the 30 days in which he could have made an application for setting aside the ex parse decree." There is nothing in the reported judgment in Muhammad Ramzan Khan's case to show that the security had not been furnished within 15 days; but I take it that the learned judge must have satisfied himself of the correctness of that fact by referring to the record of that case which, unfortunately, is not available in this Court as 'it was sent to the East Punjab High Court after the Independence.

That the decision of the Division Bench was influenced by the consideration pointed out by Abdur Rahman J. is apparent from the following sentence in the concluding portion of that judgment: "It is no longer open to the Court to extend the time within which the deposit is to be made or security furnished." It is true that the learned Judges did not refer to the extension of time for making the application for either review or setting aside an ex‑parse decree; but as the deposit of the decretal amount and the application for furnishing security cannot be made after such an application, the period of limitation for depositing the decretal amount or making an application for furnishing security cannot extend beyond the period for making an application for review or setting aside a decree. I, therefore, hold that the application of the ruling in Muhammad Ramzan Khan's case must be confined only to cases where the deposit of the decretal amount or the application for furnishing security is made beyond the period of limitation provided for making of an application for review or setting aside a decree of a Small Cause Court.

There is another way of looking at the question. The proviso to section 17 only says that an applicant for an order to set aside an ex parse decree or for a review of judgment shall, at the time of presenting his application, do one of the two things mentioned therein. It does not say that where the applicant fails to do either of these things at the time of presenting his application the setting aside of an ex parte decree or the review of a judgment becomes barred for ever. The effect of the mandatory provision can only be that the order prayed for by the applicant cannot be made; or, at the most, that such an application is not maintainable. There is, however, nothing to prevent a Court from keeping such an application pending until the condition for 'its maintain ability has been fulfilled. Only it cannot keep it pending beyond the period of limitation within which it must be made.

The application for setting aside the ex parte decree in the instant case was made, and the security was furnished, within the time for making the application. I, therefore, accept this application for revision and setting aside the order of the lower Court, set aside the ex parte decree on payment of Rs. 10 as costs. The petitioner shall have the costs of this application.

A. H, Petition accepted.

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