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Civil Rule No. 150 of 1957, decided on 28th June, 1957.

S. 17 (1) proviso‑Application for acceptance of security not made "previous" to, but simultaneously with application for setting aside ex‑parte decree‑Security furnished within limitation after Court's order-Proviso, held, sufficiently complied with.

Muhammad Ramzan Khan v. Khubi Khan A I R 1938 Lah. 18 and Vembu Amal v. Esakkia Pillai A I R 1949 Mad. 419 dissented from.

Assan Mohamed Sahib v. Rahiman Sahib I L R 43 Mad, 579 ; Tarachand Hirachand Porwal v. Durappa Tavanappa Patravali A I R 1943 Born. 237 ; 33 Rom. L R 1433 ; I L R 18 Lah. 728 ; Ghinoo Choudhuri v. Ramjapur Singh A I R 1938 Pat. 106 and Qabul Singh v. Jai Prakash I L R 1939 All. 554 ref.

T. Talukdar for Petitioner.

S. C. Dutta for, Opposite‑Party.

This is an application under section 25 of the Provincial Small Cause Courts Act. The plaintiff opposite‑party brought a suit against the petitioner, being S. C. C. Suit No. 333 of 1955, in the 6th Court of the Munsif, Barisal, on the 30th of August, 1955, for recovery of Rs. 75 as the price of half share of the paddy grown by the petitioner in the year in suit.

2. The suit was contested by the defendant. The suit was fixed for peremptory hearing on 18th May, 1956, but the petitioner on the date of hearing was absent on account of his illness, and the suit was decreed ex parte against him. On 26th May, 1956, the petitioner filed an application for setting aside the ex parte decree passed on 18th May, 1956. He also simultaneously filed another application for permission to furnish security instead of depositing the decretal dues. This prayer was allowed, and the petitioner furnished the security on 6th June, 1956, under directions of the Court, and the security was accepted. The learned S. C. C. Judge, however, without taking any evidence whatever, dismissed the application on the ground that the petition was not maintainable for non‑compliance with the provisions of the proviso to section 17 (1) of the Act. The petitioner thereafter moved this Court under section 25 of the Provincial Small Cause Courts Act, and obtained the present Rule.

3. Mr. Talukdar, counsel, appearing on behalf of the petitioner, has contended before this Court that the Court below misconstrued the provisions of section 17 of the Small Cause Courts Act, and erred in law in holding that the application for re‑hearing was not maintainable.

4. Mr. S. C. Dutta, the learned Advocate appearing for the opposite‑party, has, however, urged before this Court that the proviso to section 17, clause (1) of the Act is mandatory, and, as the petitioner did not either deposit in Court the amount due from him under the decree or give such security for the perfor mance of the decree at the time of presenting his application, the Court below rightly held that the Miscellaneous Case was not maintainable at all. He has cited the case of Mohammad Ramzan Khan v. Khubi Khan (A I R 1938 Lah. 18), where their Lordships Addison and Din Mohammad, JJ., held at page 18 of the report:

"It seems to us that the amendment of section 17 by Act IX of 1935 was meant to show and does show that the applicant for a review of judgment must at the time of presenting his application, 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, on a previous application made by him in this behalf, have directed. The only part of the section which could be said to be obscure has been repealed and a new provision inserted in which there is no obscurity. As section 17 (1) now stands, the procedure prescribed in the Code of Civil Procedure, 1908, shall, with a saving clause, be the procedure followed in a Court of Small Causes, provided that an applicant for a review of judgment or for an order to set aside a decree passed ex parte shall and must, at the time of presenting his application, do one of two things, 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. If he does not make the previous application, he must put in the money in full. If he has made it and been successful in getting an order for security instead of depositing the money in full, he can furnish the security which the Court may have previously directed. It is no longer open to the Court to extend the time within which the deposit is to be made or security furnished."

The learned Advocate has also cited the case of Vembu Amal v. Esakkia Pillai (A I R 1949 Mad. 419), where it has been held at page 420:

"The learned counsel for the petitioner urged that the lower Court's order in the review petition was passed without jurisdiction and was patently wrong in law and also perverse in fact, and ought to be set aside, and that the original decree in the petitioner's favour, passed on 11th June, 1946, must be restored with costs throughout. I agree. The proviso to section 17 (1), Provincial Small Cause Courts Act, clearly says that an applicant 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. The provisions are mandatory, and not merely recommendatory, and the Full Bench ruling in Assan Mohamed Sahib v. Rahiman Sahib I L R 43 Mad. 579, is conclusive on the point. The respondent did not make a previous application, as required by the proviso, or deposit the amount due from him under the decree or obtain an order of Court regarding the security to be furnished by him."

Section 17, clause (1) of the Provincial Small Cause Courts Act provides:

"The procedure prescribed in the Code of Civil Procedure, 1908, shall save in 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 ex parte 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".

5. In this case the ex parte decree was passed on the 18th of May, 1956. The application under Order IX, rule 13, Code of Civil Procedure, was put in on the 26th of May, 1956, that is, within eight days. Simultaneously the petitioner prayed before the Court for permission to furnish security, and this permission was granted, and the Court allowed the petitioner time upto 6th of June to file the security, and he actually filed the security on the 6th of June, 1956, and this security was accepted. Even 6th June, 1956, was within 30 days from the date of the decree. The; question is whether in these circumstances the application of the petitioner under Order IX, rule 13 of the Code of Civil Procedure will be maintainable. Of course, the two cases cited by the learned Advocate for the opposite‑party support his contention. In the case reported in A I R 1949 Mad. 419, the applicant did not deposit the decretal amount or did not obtain any order of the District Munsif regarding security, and, when the attention of the Court was drawn to proviso (1) to section 17 of the Provincial Small Cause Courts Act, the District Munsif, who heard the review petition, remarked that there was little doubt that, for the purpose of reviewing the judgment, security must have been furnished by Esakkia Pillai, and accepted within thirty days from the date of the decree, evidently relying on the Full Bench decision of this Court in Assan Mohamad Sahib v. Rahiman Sahib holding the provisions of section 17. (1), Provincial Small Cause Courts Act, to be mandatory and not merely recommendatory. In the case reported in A I R 1938 Lah. 18, it is also not clear from reading the judgment whether any security or deposit was made within or beyond the period of limitation. Their Lordships only came to the conclusion that the Small Cause Court had no jurisdiction to extend the time within which the deposit is to be made or security to be furnished. In our present case, the security was filed under orders of the Court and accepted by the Court within the period of limitation. Beaumont, C. J., has observed in the case of Tarachand Hirachand Porwal v. Durappa Tavanappa Patravali (A I R 1943 Bom. 237):

"The Court, in adopting that construction, came to the conclusion that to give literal effect to the terms of the first part of the proviso, and insist that the payment into Court must be made with the application, and not afterwards, would work injustice, since it would really be penalising the applicant for having made his application before he was bound to do so under the Limitation Act."

His Lordship, therefore, held:

"In order to comply with the first part of the proviso it is not essential, as the language prima facie suggests, that the deposit should be made at the time of making the application to set aside the decree ; it is sufficient if the deposit is made within the time allowed by law for setting aside the decree."

At page 238, his Lordship further observed:

"The learned First Class Subordinate Judge dismissed the application, and considered that 33 Born. L‑R 1433 had an appli cation after the amendment of section 17 made in 1935, and for that view he relied on a decision of the Lahore High Court in I L R 18 Lah. 728. The Court in that case held that .the amend ment to section 17 in 1935 had made the whole section clear, and removed the ambiguity which was supposed to have existed under the latter part of the old section, and apparently the Court considered that the decisions upon the first part of the proviso were no longer good law. I am not prepared to accept that view. No doubt, some of the difficulties which appealed to the Court in 33 Bom. L R 1433 have been removed by the amendment, but the main ground for the decision remains. The decisions upon the first part of the proviso, under which the amount of the decree has to be deposited, must have been known to the Legislature in 1935, and if the Legislature had been dissatisfied with the result of those decisions, it would, I think, have altered the language of the first part of the proviso, and directed that the deposit should be made with the applica tion and not later, 33 Bom. L R 1433 is binding upon me, and I do not think that I should be justified in treating it as overruled. The effect of the decision is to treat the require ment for making the deposit at the time of presenting the application as directory, rather than mandatory. That seems to me the right view, and I propose to follow it."

6. This view has also been adopted in the case of Ghinoo Choudhuri v. Ramjapur Singh (A I R 1938 Pat. 106), where Rowland, J., held that:

"The requirements of section 17, Small Cause Courts Act, that the amount due or security for it is to be furnished at the time of presenting the application' can only be relaxed to this extent that if the application is presented without the money or the security bond, and the security bond or money is put in thereafter, the application will be considered to have been duly filed on the date on which the money was put in or the security furnished as the case may be."

The Lahore view was dissented from. In the case of Qabul Singh v. Jai Prakash (I L R 1939 All. 554), Sir John Thom, Chief Justice, also held that:

"The application itself was presented on the 29th May. The security, however, was not deposited until the 2nd June. In law, therefore, it must be taken that the application was presented on the 2nd June."

His Lordship also referred to a contrary decision in the vase of Myrari Lai v. Hafiz Muhammad Yasin (A I R 1938 All. 1078), and observed:

"Since dictating the above, my attention has been drawn to the decision of a learned Single Judge of this Court in Murari Lal v. Hafiz Muhammad Yasin. In that case the learned Judge held that the provisions of section 17 of the Small Cause Courts Act, as amended by Act IX of 1935, were mandatory, and that it was incumbent upon an applicant presenting an applica tion praying for the setting aside of an ex parte decree to have, prior to the presentation of that application, filed an applica tion praying that security be accepted for the performance of the decree or compliance with the judgment. In my opinion, the interpretation put upon the amended section by the learned Single Judge is too narrow. Prior to the amend ment, there appeared to have been some doubt as to whether it was within the competency of the Court to extend the time within which the complete application for the setting aside of an ex parte decree might be made in other words as to whether the Court could entertain an application for the setting aside of an ex parte decree where the security was, in fact, furnished after the lapse of 30 days from the date of the decree or the date of knowledge of the decree. In my judgment, provided the application is made and the security is furnished within the 30 days, there is substantial compliance with the provisions of section 17 as amended."

7. In the case of Mohan Lal v. Firm Muni Ram Nand Lal (A I R 1946 Lah. 62) Abdur Rahman, J., also took the same view and observed:

"Where, after the application under section 17, security is furnished by the petitioner within the time during which the application for setting aside the ex parse decree could have been made by him, the provisions of section 17 have been complied with, and the application for setting aside the ex parte decree may be deemed to have been legally presented for the first time on the day when deposit was made."

8. His Lordship dissented from the view taken in A I R 1938 Lah. 18. It, therefore, appears that the rigour of the rule has been relaxed in some cases, and the view taken in A I R 1938 Lah. 18 case and A I R 1949 Mad. 419 case has been dissented from in a later case of the Lahore High Court reported in A I R 1946 Lah. 62. I respectfully agree with the view taken in the majority of these cases and dissent from the view taken in A I R 1938 Lah. 18 and A I R 1949 Mad. 419 cases, and hold that the security being furnished on 6‑6‑56 within 30 days from the ex parte decree, the application was in time and theft provisions of section 17, clause (1), proviso, would be deemed to have been substantially complied with.

9. In this view, the Rule is made absolute; the order of the learned Small Cause Court Judge, dated 30th November, 1956, is set aside, and the case is remitted to him for disposal in accord ance with law. In the circumstances of the case, I make no order as to costs.

K. B. A./A. H. Rule made absolute.

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