The court's discretion in requiring the applicant to furnish security or deposit the entire decreetal amount in cash under Section 17 of the Act should consider the hardship of the applicant and avoid causing prejudice or miscarriage of justice.

Ran Vijai Singh, J.

Heard Sri Vikrant Rana, learned counsel for the revisionist and Sri P.K.Singhal, learned counsel for the opposite party.

2. This s.c.c.revision has been filed against the order dated 15.5.2015 passed by the XVth Additional District Judge, Ghaziabad in Misc. Case No. 13 of 2014 (Pyari Mohan Parida Vs. Multani Mal Modi Degree College) by which the application no. 4-ga, filed by the revisionist under Section 17 of Provincial Small Causes Courts Act, 1887, has been rejected.

3. The facts giving rise to this case are that the plaintiff-respondent filed Small Causes Case No.42 of 2014 for eviction of the revisionist-defendant on the ground of default in payment of rent. The aforesaid suit was decreed exparte on 28.5.2014. For setting aside the exparte decree, the applicant has filed an application on 11.7.2014. Along with the application, the applicant has also filed an application seeking permission of the court to furnish security to meet out the rigour contained in Section 17 of Provincial Small Causes Courts Act, 1887 itself. The court below rejected the application of the applicant on the ground that the neither the applicant is paying any rent to the landlord since 2011 nor attending the proceeding of the suit.

4. For appreciating the controversy it would be useful to go through the provisions contained under Section 17 of the Provincial Small Causes Court Act, 1887 (hereinafter referred to as 'the Act') which run as under : -

17. Application of the Code of Civil Procedure. (1) [29][The procedure prescribed in the Code of Civil Procedure, 1908[30], 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 cognizable 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 judgement 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 [31][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) Where a person has become liable as surety under the proviso to sub-section (1), the security may be realized in manner provided by section [32][145] of the Code of Civil Procedure, [33][1908].

5. From the bare reading of the proviso to Section 17, it would transpire that at the time of filing of an application for setting aside the exparte decree, the applicant is required either to deposit the entire decretal amount or security depending upon the discretion of the court.

6. Learned counsel for the applicant submits that the court below has erred in rejecting the applicant's application to furnish security directing to deposit the entire decreetal amount in cash without considering another mode to furnish security for satisfaction of decree. In his submissions, for setting aside an exparte decree, the entire effort should be to secure the decreetal amount before maintaining any application and for that purpose, the legislature has given two options : -

(i) either to furnish security to the satisfaction of the court.

(ii) or to deposit the entire decreetal amount in cash or on the satisfaction of the court, some part may be deposited in cash and for some part, security may be furnished to the satisfaction of the court.

7. It may also be visualized that when a person, coming to the court, is praying that he may be permitted to furnish security showing his/her helpness to deposit the entire amount in cash, the court without giving any proper reason and without looking into the hardship of the applicant in order to deposit the entire decreetal amount in cash cannot pass an order directing the applicant to deposit entire amount in cash and if it is allowed to sustain, it would lead to serious prejudice and miscarriage