AMAR BIR SINGH GILL, J.

( 1 ) THIS judgment shall dispose of both the writ petitions, as common question of law is involved. The short question which requires decision in these two writ petitions is the application of proviso to Section 17 (1) of Provincial Small Cause Courts Act, 1887.

( 2 ) IN writ petition No. 2801 (R/c) of 1983 an ex parte decree dated 17-3-81 passed by the Judge small cause courts, Faizabad for ejectment of the petitioner as also for arrears of rent with costs and pendentelite and future damages on payment of requisite court fees is in dispute. The petitioner filed an application for setting aside the ex parte decree on 2-7-81 and also depositedthe decretal amount. He, however, deposited costs etc. subsequently on 3-9-81. Objections to the tender were filed by the decree holder. The Judge Small Cause Courts vide judgment dated 22-9-82, copy of which is Annexure-5, relying upon proviso to Section 17 of the Act dismissed the application for setting aside the ex parte decree petitioner filed revision, which also met with the same fate and was dismissed on 16-5-83, copy of judgment is Annexure-4.

( 3 ) IN writ petition No. 5077 (R/c) of 1981 the facts are somewhat similar. An ex parte decree dated 20-8-74 was passed for ejectment of the petitioner besides pendente lite and future damages at the rate of Rs. 30. 00 per month till the delivery of possession. The defendant filed an application for setting aside the same under Order 9, Rule 13 CPC on 9-4-80 and also deposited the sum of Rs. 408. 95 towards the decretal amount. Admittedly without depositing any amount towards rent and damages pendente lite along with the interest such an application could not be made. This application for setting aside the decree was also dismissed by judgment dated 14-1-81 vide Annexure-3, by Judge Small Cause Courts. Lucknow holding that the applicant did not comply with the provisions of Section 17 proviso one of the Act by not depositing the pendente lite and future damages, for use and occupation and dismissed the application accordingly. In revision as well as simillar view was taken by order dated 16-9-81 passed by III Additional District Judge, Lucknow, copy of which is Annexure-5.

( 4 ) THE learned counsel for the parties have been heard.

( 5 ) THE proviso to Section 17 (1) of the Act reads as under :-"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. "

( 6 ) A bare perusal of the aforesaid provision leaves no doubt in any manner of its mandatory nature and its non-compliance amounts to an illegality. It is so because an application for setting aside an ex parte decree is to accompany with the deposite in the court of the amount due from the applicant under decree or in pursuance of a judgment. The applicant by itself becomes incompetent without the deposits aforesaid on account of mandate contained in the expression "shall" in the proviso. Expression "amount" under the decree also includes the amount in pursuance of the judgment that apart from the decretal amount any other direction for payment of damages pendente lite or future for use and occupation if ordered have to be part of decretal amount i. e. the amount claimed by the plaintiff in the suit. The Small Cause Court while decreeing the suit ex parte for ejectment decreed not only for arrears of rent but also for future mesne profits, the payment of future mesne profits thus becomes part of decretal amount and the judgment-debtor in order to seek setting aside of such a decree, if fails to make the full deposit, the Court is justified in rejecting his application and refusing the setting asid

Click Here to Read the rest of this document