JUDGMENT :- This First Appeal from Order is directed against an order passed by the Ist Additional District Judge, Varanasi dismissing an application under Order IX Rule 13 C. P. C.

2. The brief facts are these. A suit was filed by the plaintiff for the eviction of the defendant on the allegation that the latter s tenancy had been determined and after such determination, he was not entitled to remain in occupation of the accommodation in his tenancy. Arrears of rent and damages for illegal use and occupation were also claimed. The suit was decreed ex parte. The defendant moved an application under Order IX Rule 13, C. P. C. for setting aside the ex parte decree. A preliminary objection was raised on behalf of the plaintiff that the said application was not maintainable in view of the fact that the suit was one of the nature of Small Causes and, therefore, Section 17 of the Provincial Small Cause Courts Act was applicable and in terms of the proviso to the said section, the defendant who was seeking to set aside the ex parte decree, was bound to deposit in the court the amount due from him under the decree or in pursuance of the judgment, or to give such security for the performance

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