Hon’ble Suneet Kumar, J.—The respondent/landlord filed a suit for eviction and arrears of rent before the Small Causes Court at Gorakhpur being Case No. 20 of 2005 (Ram Ji Verma v. Smt. Kusum). The suit was decreed ex parte by judgment and order dated 28 August 2006. The petitioner made an application dated 19 October 2006 in terms of Order 9 Rule 13 alongwith delay condonation application. During pendency of the application, the petitioner moved an application (Paper No. 63-Ga) under Section 17 of the Provincial Small Causes Court Act, 1887 (the Act, 1887) on 3 September 2011 seeking permission of the Court to deposit the decretal amount as per the decree. The trial Court rejected the application moved under Section 17 of the Act, 1887 on 4 August 2012. The petitioner made another application for recall of the order which was rejected on 16 August 2013. Aggrieved, the petitioner preferred a revision before the Additional District Judge, Court No. 2, Gorakhpur being Revision No. 19 of 2013 (Smt. Kusum v. Ram Ji Verma) which was dismissed on 10 September 2014. Aggrieved, the petitioner is assailing the aforementioned orders in writ jurisdiction.

2. At the very outset, learned counsel for the petitioner has very fairly conceded that in view of the judgement rendered by the Supreme Court in Radhey Shyam and another v. Chhabi Nath and others, 2015 (3) ADJ 210 (SC), no writ would lie against a judicial order arising out of civil proceedings. Learned counsel for the petitioner would contend that the issue raised in the petition goes to the root of the lis, therefore, the petition be heard under Article 227 of the Constitution, further, the learned counsel for the petitioner would confine his argument within the parameter of the said Article. I, accordingly, proceed to examine the submission of learned counsel for the petitioner under Article 227 of the Constitution.

3. Submission of learned counsel for the petitioner is that the Court below committed an error in rejecting the application under Section 17 of the Act, 1887 without deciding the delay condonation application filed alongwith the application under Order 9 Rule 13. It is, therefore, contended that the application under Order 9 Rule 13 could not have been decided being barred by time, unless the delay was condoned. Upon condonation of delay the application under Section 17 of the Act, 1887 would thereafter mature for disposal.

4. In rebuttal, Shri N.K. Chaturvedi, learned counsel appearing for the respondent would contend that as per the scheme of Section 17 of the Act, 1887, the petitioner has to comply with the provisions of Section 17 of the Act, 1887 on the date of filing of the restoration application under Order 9 Rule 13 irrespective of the application being barred by laches. The trial Court has not committed any illegality or infirmity in rejecting the petitioner’s application.

5. It is not disputed by the learned counsel for the petitioner that the application under Order 9 Rule 13 was filed on 19 October 2006 to recall the ex parte judgment and decree dated 28 August 2006, no application for compliance in terms of Section 17 of the Act, 1887 was filed. The application under Section 17 was moved much later on 3 September 2011.

6. The question for determination is as to whether the application under Section 17 of the Act 1887 could have been maintained only after the application under Order 9 Rule 13 would have matured upon condonation of delay.

7. The Supreme Court in Kedarnath v. Mohan Lal Kesarwari and others, AIR 2002 SC 582, held that proviso to Section 17 of the Act, 1887 is mandatory, an application seeking to set aside an ex parte decree must be accompanied by a deposit in the Court of the decretal amount. The provision as to deposit can be dispensed with by the Court in its discretion subject to a previous application by the applicant seeking direction of the Court for leave to furnish security and the nature thereof. The proviso to Section 17(1) of