The main legal point established in the judgment is that while the deposit requirement under the proviso to S.14 of the Kerala Small Cause Courts Act is mandatory, a fresh application to the same relief can be made if the defect is cured within the time prescribed for such applications.

1. This petition is by the two defendants in a Small Cause Suit against an order dismissing their application under Order IX R.13 CPC. The decree is dated May 29,1961; and the application was made on June 15,1961, averring that they have not been served with any notice or summons in the suit, and came to know of the decree only on June 13, 1961. The court ordered on June 21 "Deposit the decree amount by 10 7"; and the entire decree amount was deposited on July 7,1961. The application was, however, dismissed on August 30, 1961 as not been accompanied by the deposit at presentation. Hence this revision petition.

2. The proviso to S.14 of the Kerala Small Cause Courts Act, 8 of 1957, enacts:

"Provided that an applicant for an order to set aside a decree passed 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."

Here, the application was presented on June 15,1961; and the deposit was made only on July 7,1961. The proviso is obviously mandatory in its expression, and it has been so held in regard to the identically worded proviso to S.17 of the Provincial Small Cause Courts Act by all the High Courts in India.

But the question need not stop there. A dismissal for defects of the kind under consideration, will on the analogy of Order VII R.13 and Order IX R.4 CPC., not preclude a fresh application to the same relief. If these a second application were competent on the date the deposit was made Court, it would be purposeless formality to dismiss the pending application and receive another of identical contents. The interests of justice would be served better if the application not accompanied by the requisite deposit be treated as defective and reckoned as been made in accordance with law when the defect is cured.

3. In Assan Mohammed Sahib v, Rahim Sahib (ILR. 43 Mad. 579 F. B.) the question was whether the directions in the Provincial Small Cause Courts Act as to the deposit of the decree amount or the giving of security at the time of presenting an application to set aside an ex parte decree are mandatory or not. Wallis C. J., with whom Oldfield J. agreed, observed therein:

"In Jeun Muchi v. Budhiram Muchi (ILR. 32 Cal. 339) where the application was made without making a deposit or giving security, it was held by Brett and Mookerjee, JJ., that, if the requirements of the section were complied with within the period prescribed for such applications in the Limitation Act, it might be treated as sufficient, as no objection could have been taken if a fresh application had been presented when security was deposited. I think that this interpretation of the requirements of the section may well be followed ... and would answer accordingly that the provision in question is mandatory, but is sufficiently complied with by satisfying the requirements of the section before the time prescribed for such applications in the Limitation Act has elapsed".

Seshagiri Ayyar J. concurred and observed:

it... even though the original application may not be accompanied by a deposit, once the application is on record, a deposit subsequently received within the time limited by law, would validate the application. This seems to be a very salutary rule. The later deposit would attract to itself the earlier application, and the application itself may be regarded as having been made on the date of the deposit."

4. If the applicant's averments that they have not been served with any summons or notice in the suit and came to know of the decree on June 13,1961 only, which have not been investigated by the court below, be true, they have time till July 13, 1961 to move an application to set aside the ex parte decree. The required deposit having been made o