ORDER :- Budh Sen opposite party No. 1 filed a suit for ejectment against Lala Amichand. During the pendency of the suit, Amichand died. His widow Smt. Ram Piari the present applicant as well as his sons and daughters, who are opposite parties 2 to 7, were substituted in his

place. The sons actively participated in the further hearings of the suit and the same was ultimately decreed on December 6, 1975. The decree was ex parte against the applicant, namely, the widow of Amichand. The applicant moved for the setting aside of the ex parte decree on January 19, 1976. She filed a tender for Rs. 208.50, the decretal amount, along with the aforesaid application. The court passed the tender the same day, but the money was deposited in the bank on February 18, 1976. The trial court dismissed the application on the finding that the applicant Smt. Ram Piari had knowledge of the suit and wilfully did not appear and allowed it to proceed ex parte against her. The court disbelieved her case that she came to know of the decree on January 13, 1976. The necessary consequence of this finding was that since the decree was dated Dec. 6, 1975, the application filed on January 19, 1976 was beyond the prescribed period of limitation.

2. Aggrieved, the lady went up in revision. At the hearing of the revision, it was argued that since the proviso to S. 17 of the Provincial Small Cause Courts Act was not complied with inasmuch as the decretal amount was not deposited within time, the application for setting aside the ex parte decree was not maintainable. The learned District Judge upheld this contention and dismissed the revision. The lady has come to this Court under S. 115 of the Civil P.C.

3. When this paint was taken in the court of the District Judge, the applicant moved an application supported by an affidavit praying that the delay in depositing the money be condoned. No specific order appears to have been passed by the learned District Judge on this application.

4. Learned counsel for the applicant has argued that the learned District Judge was in error in not passing any order on the application for condonation of delay in depositing the money and further that he misconstrued the proviso to S. 17. Section 17 of the Provincial Small Cause Courts Act provides:

"17. Application of the Code of Civil Procedure-

(1) The procedure prescribed in the Code of Civil Procedure, 1908, shall save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Causes in all suits cognisable by it, and in all proceedings arising out of such suits:

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.

(2) Where a person has become liable as surety under the proviso to sub-s. (1), the security may be realised in manner provided by S. 145 of the Code of Civil Procedure, 1908."

5. In (Sher) Ahmad Khan v. Ali Bux (AIR 1931 All 103) S. 17 was held to be mandatory. In Ram Bharose v. Ganga Singh (AIR 1931 All 727) a Full Bench explained the various methods of complying with S. 17. The Full Bench gave a reasonable and practical interpretation of the Proviso.

6. In Mt. Bipti v. Kali Din (AIR 1951 All 420) a Division Bench held-

"...... Where the direction of the Court as to the security to be furnished is taken and the security is furnished within the period of limitation and the application for the setting aside of an ex parte decree is also made within time, the application for the setting aside of an ex parte decree, though made before the direction of the Court is obtained or the security is actually furnished, can be treated as having been made when the secu

Click Here to Read the rest of this document