Hon'ble Dilip Gupta, J.:-

This petition seeks the quashing of the judgment and order dated 12th August, 1994 passed by the Judge, Court of Small Causes by which SCC Suit No.128 of 1993 filed by Radha Rani-respondent no.2 against Surendra Kumar (petitioner) and Sukhpal-respondent no.3 for ejectment and recovery arrears of rent was decreed. The petitioner has also sought the quashing of the judgment and order dated 18th November, 2000 by which the suit was again decreed since the earlier decree dated 12th August, 1994 was recalled on an application moved by the petitioner. The petitioner has also sought the quashing of the judgment and order dated 19th September, 2003 by which the application filed by him for setting aside the ex-parte decree dated 18th November, 2000 has been rejected as also the judgment and order dated 31st January, 2004 by which the Revision filed by the petitioner for setting aside the order dated 19th September, 1993 was dismissed.

It transpires from the records of the writ petition that SCC 128 of 1993 was filed by Radha Rani for ejectment of the petitioner Surendra Kumar and recovery arrears of rent. As the defendants did not appear despite service of notice, the Court passed an order on 9th December, 1993 that the suit shall proceed ex-parte and the suit was ultimately decreed ex-parte on 12th August, 1994. An application was, however, filed by the petitioner for setting aside the ex-parte decree which application was rejected on 25th August, 1995 as the petitioner did not appear to press the application. Another application was filed by the petitioner which was allowed and ultimately by the order dated 12th October, 1995 the ex-parte decree was set aside. Again an order was passed to proceed ex-parte, as the petitioner did not appear but it was set aside by the order dated 14th July, 1996 and thereafter the defendants took as many as 17 adjournments. The suit was, however, again decreed ex-parte on 18th November, 2000. The decree holder put the decree into the execution which was registered as Execution Case No.18 of 2003.

On 1st December, 2000, the petitioner again moved an application under Order 9 Rule 13of the Code of Civil Procedure for setting aside the ex-parte decree dated 18th November, 2000. This application was rejected by the Judge, Court of Small Causes by the order dated 19th September, 2003 against which the petitioner preferred Civil Revision which was dismissed by the order dated 31st January, 2004.

A preliminary objection has been raised by the learned counsel for the respondents that the writ petition should be dismissed as the condition stipulated in the proviso to section 17(1) of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the 'Act') had not been complied by the petitioner while filing the application for setting aside the ex-parte decree dated 18th November, 2000 inasmuch as the applicant did not deposit the amount due under the decree at the time of presenting the application.

It needs to be noticed that on 9th February, 2004 when the petition was presented, the Court directed the petitioner to file supplementary affidavit as to whether compliance of the condition stipulated in the proviso to Section 17 of the Act had been made while moving the restoration application. A supplementary affidavit has been filed by the learned counsel for the petitioner.

It is the contention of the learned counsel for the petitioner that compliance of the condition stipulated in the proviso to Section 17 of the Act had been made by the judgment debtor.

It is not possible to accept the contention of the learned counsel for the petitioner that the condition stipulated in the proviso to Section 17 of the Act had been complied with by the petitioner.

Section 17 of the 1887 Act which deals with the applicability of Code of Civil Procedure for the procedure to be followed by Small Cause Courts and the conditions under which ex-parte decree can be set aside is as follows:-

"17. Applicat

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