The proviso to Section 17 (1) of the Provincial Small Cause Courts Act is mandatory and requires compliance at the time of filing the application to set aside an ex parte decree.

Anjani Kumar, J.—This revision has been filed under Section 25 of the Provincial Small Cause Courts Act, 1887. The facts giving rise to filing of this revision are as under :

The revisionist-plaintiff filed a suit which was decreed ex parte on 24.8.2002 against the defendant-respondent. The defendant filed an application under Order IX, Rule 13 of the Code of Civil Procedure on 26.10.2002 along with an application for condonation of delay. No application for deposit of money as required under the proviso to Section 17 (1) of the Provincial Small Cause Courts Act, was made. Thereafter it appears that the defendant filed an application 14 Ga on which the Court granted time for deposit of the money in terms of the decree passed in S.C.C. Case No. 5 of 2002 but inspite of time being granted no deposit has been made by judgment debtor and thus it is clear that the defendant has not complied with the proviso to Section 17 (1) by depositing the decretal amount along with application under Order IX, Rule 13. Thereafter an application numbered as 16 Ga seeking permission to furnish security in terms of the proviso to Section 17 (1) was filed instead of depositing money as earlier directed. This application has been allowed by the Small Causes Court against which this revision is filed by the landlord-plaintiff under Section 25 of the Provincial Small Cause Courts Act. The proviso to Section 17 (1) which is relevant for the purposes of the present controversy, is reproduced below :

“17. Application of the Code of Civil Procedure.—(1) The procedure prescribed in the Code of Civil Procedure, 1908 (5 of 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 the 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. Learned counsel for the revisionist argued that the trial court has committed an error in accepting the security by the impugned order when the trial court has already granted time to deposit the decretal amount in cash to which defendant failed to comply with. There is yet another reason according to learned counsel for the revisionist that proviso to Section 17 (1) is to be complied with while filing an application under Order IX, Rule 13 and admittedly which has not been done. Learned counsel for the revisionist has relied upon a decision of this Court in United India Insurance Company Ltd. v. District Judge, Ghaziabad and others, 2002 (1) ARC 69, wherein this Court relying upon the decision of the Apex Court in Kedarnath v. Mohan Lal Kesarwani and others, 2002 (1) ARC 186, has held that the time for depositing the decretal amount or grant permission to furnish the security as contemplated under the proviso to Section 17 (1) of the Provincial Small Causes Courts Act beyond the date of limitation prescribed, cannot be extended, and therefore the revision deserves to be allowed. Learned counsel for the revisionist has further relied upon a decision of the Apex Court in Kedarnath v. Mohan Lal Kesarwani and others, 2002 (1) AWC 502 (SC) : AIR 2002 SC 582.

3. Learned counsel for the respondents has also relied upon a decision of this Court in Vinod Bansal v. Additional District Judge, Bulandshahr and others, 2002 (2) AWC 1640 : 2002 (47) ALR 671, in which this Court has relied upon the decision of Kedarnath (supra). Para 10 of the aforesaid judgment is reproduced below :

“10. In view of the decision of the Apex Court in Kedarnath v. Mohan Lal Kesarwani and others, the Apex Court ruled as such