Hon’ble Krishna Murari, J.—Heard learned counsel for the applicant.

2. Landlord-respondent filed SCC Suit No. 63 of 2008 for ejectment and arrears of rent against tenant-applicant. Suit was decreed by means of ex parte judgment and decree dated 3.1.2009. Thereafter, an application dated 31.1.2009 under Order IX Rule 13, C.P.C. was made for recall of the ex parte decree. Trial Court vide order dated 9.2.2009 while entertaining the application under Order IX Rule 13, C.P.C. stayed the execution of the ex parte decree subject to the conditions the applicant deposits 50% of the decretal amount in cash and furnish security for rest of 50%. The applicant deposited a sum of Rs. 55,000/- on 13.9.2002 and submitted security bond for a sum of Rs. 55,000/-. An objection was filed by the tenant-applicant that total outstanding amount was to the tune of Rs. 2,66,815/-, the half of which comes to Rs. 1,33,410/- and the applicant has only deposited Rs. 55,000/- and furnished security for Rs. 55,000/-, thus the order has not been complied and the application was liable to be rejected for non compliance of Section 17 of the Provincial Small Cause Courts Act. It was only thereafter the applicant moved another application that entire amount could not be deposited on account of the mistake of counsel and since he was not in a position to deposit the outstanding amount as such he may be permitted to give security for the entire balance amount of Rs. 5,65,000/-. The Court below finding that applicant has failed to comply the provisions of Section 17 of the Provincial Small Cause Courts Act dismissed the application under Order IX Rule 13 C.P.C.

3. It has been contended by the learned counsel for the applicant that Court below has committed an error of law in ignoring the fact that applicant as per order dated 9.2.2009 had deposited 50% of the decretal amount in cash and furnished security for the rest of 50% and actually the amount which was required to be deposited could not be deposited due to advise and miscalculation by the counsel.

I have considered the arguments advanced by the learned counsel for the applicant and perused the record.

4. It is undisputed that the Court granted him permission to deposit 50% of the entire decretal amount in cash and to furnish security for rest of the amount which was not complied. Neither half of the entire decretal amount was deposited nor the security for the full balance amount was furnished. On the contrary, the applicant only deposited a sum of Rs. 55,000/- in cash and furnished security for Rs.55,000/- as against the decretal amount. According to own application filed by the applicant dated 15.1.2010 filed as Annexure ‘7’ to the affidavit, there was a short fall in making the deposit or furnishing security to the tune of Rs. 5,65,000/-.

5. It is very well-settled that the provisions of Section 17 of the Provincial Small Cause Courts Act are mandatory in nature and non compliance thereof renders the application under Order IX, Rue 13, C.P.C. as not maintainable and liable to be dismissed. Reference may be made to the decision of the Hon’ble Apex Court in the case of Kedar Nath v. Mohan Lal Kesarwari and others, AIR 2002 SC 582. Similar view was taken by this Court in the case of Smt. Khilla Devi alias Manju v. Smt. Vishwa Mohini Misra 2005 (1) AWC 843.

6. The application for setting aside ex parte decree was not accompanied by requisite deposit of the amount due under the decree. Even after the order was passed by the Court to deposit 50% of the decretal amount in cash and furnish security for rest of 50%, the order was not carried out in as much as neither half of the entire decretal amount was deposited nor security was furnished for the remaining half. It was only when the plaintiff-landlord pointed out, the applicant moved an application for furnishing security for the outstanding amount on the pretext that the entire amount could not be deposited due to miscalculation and mistake committed by the c