The provisions of Section 17 of the Small Cause Courts Act are mandatory and must be strictly complied with. A security bond is a valid security bond only if it is for the performance of the ex parte decree.

ORDER :- This is a defendants application directed against an order of the Small Cause Court Judge, Berhampur, rejecting his application under O. 9 R. 13 of the Code of Civil Procedure. The learned Judge rejected the application on the ground that the application is not maintainable, since it did not comply with the provisions of S. 17 of the Small Cause Courts Act.

2. Mr. Ramdas, learned counsel on behalf of the petitioner contended that he had complied with the provisions of S. 17 within the period of limitation. In other words his contention is that he had filed a draft security bond within thirty days of the ex parte decree. The proviso to S. 17 says 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.

An identical question came up before this Court in the case of Manu Sadangi v. Baraju Das, Civil Revn. No. 255 of 1958 since reported in Orissa Judicial Decisions p. 604. In that case I took the view that the proviso to S. 17 of the Small Cause Courts Act lays down that an application for an order to set aside a decree passed ex parte or for a review of the judgment shall at the time of presenting his application either deposit in 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. This proviso to Sec. 17 was introduced by Act IX of 1935.

The amendment adopted the view that an applicant applying for a review of judgment or for an order to set aside an ex parte decree must at the time of presenting his application do one of the two things, namely, either deposit in court the amount due under the decree or give such security for performance of the decree as the court may have directed on a previous application made by him in this behalf. If he does not make the previous application, he must put in the decretal amount in full. If he has made the previous application and succeeded in getting an order for security in cash, he can, instead of depositing the decretal amount, furnish the security directed by court. It is no longer open to the court to extend the time within which the deposit is to be made or the security furnished.

3. In order to appreciate the argument of Mr. Ramdas, certain facts have got to be stated in detail. The ex parte decree for a sum of Rs. 247/- including costs was passed on 25-1-1957. The application under O. 9, Rule 13 was filed on 28-1-57. Before expiry of the 30th day, the applicant filed an application on 11-2-57 for giving him permission to file security or to take the previous security as sufficient. On 13-2-57, the Court ordered that the previous security furnished by the petitioner having been discharged the petitioner was to furnish fresh security and allowed him time till 20-2-57 which was within the period of limitation.

On 20-2-57 a draft-bond for Rs. 200/- executed by a third party Krushna Moharana was filed, and the court ordered it to be put up on 26-2-57. On 26-2-57 the court did not accept the draft bond which was filed by Krushna Moharana but asked the petitioner to file a proper security bond. A fresh bond for Rs. 250/- was filed by the petitioner on 8-3-57, but no affidavit showing that the properties are free from encumbrances were filed by him. Accordingly the court ordered that the petitioner must file such an affidavit by 21-3-57. However, the affidavit was filed on 2-4-57 and the Court ordered the bond to be checked and put up on 9-4-57.

This draft-bond was accepted as sufficient on 16-4-57 and the fresh security bond engros