JAGAT NARAYAN, J.—This is an appeal by one Birdha whose election petition filed under sec. 34 of the Rajasthan Municipalities Act 1959 challenging the election of Ranchhor Das to ward No. 2 of Merta Municipality has been dismissed by the Civil Judge, Merta under sec. 44(3) on the ground that he failed to comply with the provisions of sec. 53(1) inasmuch as the treasury receipt was not enclosed along with the petition.

2. A preliminary objection has been taken on behalf of Ranchhordas that this appeal is not competent as the treasury receipt showing that a deposit of Rs. 100/-has been made by the appellant in the Government treasury in favour of the High Court as security for the cost of the appeal was not enclosed with the memorandum of appeal.

3. It was alleged on behalf of Birdha before the learned Civil Judge that the Government treasury receipt was enclosed with the petition and it has also been alleged on his behalf before me that the Government treasury receipt was enclosed with the memorandum of appeal. Both these deposits were made as civil court deposits.

4. The current procedure for making such deposits is this. The person wanting to make a deposit presents a tender in triplicate in accordance with r. 255 of the General Rules (Civil) and r. 820 of the High Court (Rules). The tender is presented before the Munsarim of the subordinate civil court concerned. In the case of the High Court the tender is to be presented before the Deputy Registrar (Judicial). Cash is not accepted either in the subordinate courts or in the High Court.

5. Cash challans are then prepared in triplicate in the form prescribed under the Treasury Manual and are handed over to the person desiring to make payment. He takes them to the treasury and after the money is deposited one of these forms is given back to him along with the receipt for the money. He takes this treasury challan containing the receipt to the office. Thereupon the tender forms handed over by him originally in the office are completed. One is handed over to the person who makes the deposit, one is kept on the record of the case and one is kept in the office. The treasury challan containing the receipt (this is referred to as the treasury receipt) is also retained in the office.

6. In accordance with the above procedure only one part of the tender was kept on the file of the election petition when it was transferred by the District Judge to the court of the Civil Judge. The treasury receipt showing that the deposit of Rs. 100/- had been made was retained by the District Judge in his office. When a preliminary objection was raised against the maintainability of the election petition on the ground th$,t there was non-compliance of the provision contained in sec. 53(1) then this treasury receipt was sent for. This treasury receipt goes to show that the required deposit was made in the treasury by the election petitioner on 6.1.64 namely the date on which he filed his election petition. There is an order by the District Judge bearing the date 6.1.64 on the treasury receipt to the effect that it should be kept on the file concerned. This shows that the treasury receipt was filed on 6.1.64. There is also a report by the clerk concerned on the back of the election petition to the effect that the necessary security deposit had been made by the petitioner.

7. The allegation made by the election petitioner was that he filed the treasury receipt along with the election petition, but that it was removed subsequently from the file of the election petition, as it was needed by the Accounts Section of the District Judges office for accounts purposes. The learned Civil Judge did not believe this allegation. He held that as the treasury receipt was not enclosed with the election petition there was non-compliance of sec. 53 within the meaning of sec. 44(3). He accordingly dismissed the election petition.

8. So far as the appeal is concerned the original tender presented by the appellant is on the file of

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