The conditions laid down in the proviso to Section 17 of the Provincial Small Cause Courts Act are mandatory and must be strictly complied with.

D. K. Seth, J.

1. Leave is granted to; amend the cause title so as to convert this petition into one under Article 227 of the Constitution.

2. THE petitioner, as plaintiff, instituted Suit No. 18 of 1989 against the respondent No. 3, herein as defendant in the Court of Munsif City/judge Small Cause Courts, Farrukhabad, for ejectment on the ground of default in payment of the rent. By an order dated 3-10-1989 the said suit was ordered to be proceeded ex pane. Ultimately the suit was decreed ex pane on 11-1-1990. One Ghulam Rabbani filed suit No. 220 of 1990 against the plaintiff herein and the defendant-respondent No. 3 herein as defendants for declaration that ex pane decree dated 11-1-1990 is a nullity and void. In the said Suit No. 220 of 1990 the defendant-respondent No. 3 herein made an application on 8-9-1990, praying for time for filing written statement. THE petitioner alleged that it was the defendant-respondent No. 3 herein who got the said suit No. 220 of 1990 filed through Ghulam Rabbani to avoid execution. After having found that the purpose would not be achieved through the said suit the respondent No. 3 on 2-4-1991 filed an application for setting aside ex pane decree under Section 17 (1) of the Provincial Small Cause Courts Act together with an application under Section 5 of the Limitation Act.

The plaintiff filed his objection to the said two applications. But, however, by an order dated 28-4- 1992 the learned Munsif, condoned the delay and allowed the application under Section 17 of the Act setting aside ex pane decree. The petitioner then preferred Revision No. 11 of 1992 before the learned District Judge, against the said order dated 28-4-1992 which was ultimately allowed by an order dated 4- 12-1992 by setting aside the order dated 28-4-1992. The learned District Judge in his order dated 4-12- 1992 was pleased to observed that the respondent may file requisite deposits to the satisfaction of the trial Court, if permitted by the trial Court. Against this observation in the said order, a Writ Petition No. Nil of 1993 was moved by the petitioner. The said writ petition was disposed of by an order dated 15-1- 1993 by allowing the petitioner to contest the depositing the amount of security while observing that the defendant shall have to satisfy the trial Court that even at this belated stage the security could be deposited. Thereupon the defendant filed an application for permitting him to file security to which the petitioner had filed his objection. It is contended by the petitioner that no fresh application for restoration, however, has been filed, by the defendant, inasmuch as restoration application moved on 2- 4-1991, registered as 5/74/91 and re-numbered as 15/71/92 was the application which was being decided by an order dated 13-5-1993. By the said order dated 13-5-1993 the learned Munsif had allowed the application of the defendant by condoning the delay and setting aside ex pane decree rejecting the petitioner's objection after allowing the deposit of security of the petitioner. The petitioner's Revision No. Nil of 1993 was dismissed by the District and Sessions Judge, Farrukhabad, by an order dated 27-5-1993, affirming the order dated 13-5-1993. It is against this order dated 27-5-1993 affirming the order dated 13-5-1993 which are under challenge in the present petition.

3. LEARNED counsel for the petitioner contends that in view of Section 17 of the Provincial Small Cause Courts Act (hereinafter referred to as the Act) the application for setting aside of a decree is to be presented upon depositing the decretal amount or upon furnishing security for performance of the decree as directed by the Court on the previous application. In the present case the application has not been proceeded either by any deposit or by any previous application or any direction for furnishing the security. The provision of Section 17, according to him is mandatory. The non-compliance thereof makes such applicatio