The proviso to Section 17(1) of the Provincial Small Cause Courts Act, 1887 is a procedural and remedial provision and should be construed liberally to advance the cause of justice.

( 1 ) THESE are two petitions arising out of the same matter. As such, they are consolidated to be taken up for disposal by a common order as assented to by the learned Counsel for the parties.

( 2 ) MATRIX of the facts is that Majid Ali, petitioner is Writ Petition No. 15312 of 1992, instituted a suit, it being suit No. 88 of 1988, in the court of Judge, Small Causes, Gorakhpur for the relief of eviction of the petitioner, Qazi Nemat Ullah from the suit premises and also for recovery of arrears of rent, damages and mesne profits. The suit ended in being decreed ex parte by means of the judgment and decree dated 7-10-1988 as a consequence of which, the decree holder was put in possession of the suit premises in execution of the decree, on 6-11-1989. An application under O. 9, R. 13 C. P. C. came to be filed by petitioner Qazi Nemat Ullah on 10-11-1989 seeking recall of the aforesaid decree granted ex parte. The application was allowed and the ex parte decree was set aside by means of the order dated 2-2-1991 on the finding that summons were not duly served on the defendant. This order dated 2-2-1991 was impugned in revision, which culminated in the order dated 2-2-1991 being reversed by the 6th Addl. District Judge, Gorkhpur by means of the judgment and order dated 29-7-1991 on the ground of non-compliance of the requirements of the proviso to Section 17 (1) of the Provincial Small Cause Courts Act, 1887 (in short the act ). It is the validity of this order that has been impugned in the present petition No. 24797 of 1991 by the tenant-petitioner, Qazi Nemat Ullah.

( 3 ) THE other writ petition No. 15312 of 1992 has been filed by landlord-petitioner Majid Ali seeking the relief of quashing the orders dated 23-12-1991 and 6-4-1992 passed by the learned Judge, Small Causes Court, Gorakhpur and the learned District Judge, Gorakhpur respectively. By order dated 23-12-1991, the learned Judge, Small Causes Court, Gorakhpur allowed the restitution application filed on behalf of the petitioner, Qazi Nemat Ullah, on the dint of the order dated 2-2-1991 whereby the ex parte decree in the favour of the landlord was set aside, entailing restitution to the tenant of possession of the premises in dispute, which was taken by the landlord on 6-11-1989 on the basis of ex parte decree as stated supra.

( 4 ) IT would crystallise from the facts on record that along with his application for setting aside the ex parte decree, the defendant Qazi Nemat Ullah also moved an application dated 10-11-1989 stating therein that instead of depositing the decretal amount in cash, he was prepared to give security for the performance of the decree and accordingly, a prayer was made in the application that the court may be pleased to pass an order in this regard and give a weeks time to submit surety bond. The application was allowed as would be evident from the order dated 10-11-1989 (Annexure-4 to the Writ petition filed by Qazi Nemat Ullah) which runs as below issue notice fixing 8-12-89 for objection and disposal. Parties shall maintain status quo till 8-12-89 steps 7 days and ask for report of Amin. Application allowed issue writ to Amin calling for report by 8-12-89. Application may file sureties for decretal amount within sevan days. " JSSC". The Hindi order-sheet dated 10-11-1989 (Annexure 4 to the petition) indicates that the application for giving security for the performance of the decree or compliance with the judgment was numbered as 8-C. The expression application allowed occurring in the English order-sheet dated 10-11-1989, obviously refers to application 8-C inasmuch as there was no question of allowing the other application for the disposal of which 8-121989 was the date fixed by the learned Judge Small Causes Court. It further appears from the record that on 16-11-1989, the defendant Qazi Nemat Ullah filed surety bonds in the court along with an application with the prayer that the same may be accepted by the Court in compliance