IRSHAD ALI, J.

1. Heard Sri Farooq Ahmad, learned counsel for the petitioners and to Sri Aftab Ahmad, learned counsel for respondent No.3.

2. The dispute in the present writ petition is that the petitioners are tenant in the shop of respondent No.3 on monthly rent of Rs.300/- and is running a tea shop since year 1993. After notice to the petitioners under Section 106 of Transfer of Property Act, a suit was filed before the Judge Small Causes Court, which was numbered as Suit No.1 of 2008 for ejectment and arrears of rent and damages. The suit was decreed vide judgment and decree dated 02.05.2009. The petitioners moved an application under Order 9 Rule 13 of CPC along with application for condonation of delay under Section 5 of Limitation Act for showing the reasons for delay occasioned in filing the application.

3. An objection was filed by the plaintiff to the application moved under Order 9 Rule 13 CPC and thereafter, the matter was heard on the point of ex-parte judgment and decree vide order dated 01.12.2015 and the application moved by the petitioners was rejected.

4. Against the order passed by the Judge Small Causes Court, Revision No.4 of 2017 was filed, which has also been rejected vide order dated 19.07.2017 by recording specific finding that without depositing the decreetal amount, the application under Order 9 Rule 13 CPC is not maintainable.

5. Against the said orders dated 19.07.2017 and 01.12.2015, the petitioners preferred the present writ petition before this Court.

6. Submission of learned counsel for the petitioners is that the suit filed for ejectment and arrears of rent was not maintainable in view of the fact that notice required under Section 106 of Transfer of Property Act was not served upon the petitioners and without affording opportunity to the petitioners to file their defense, the suit was decreed ex parte.

7. He next submitted that non deposit of decreetal amount is not fatal, therefore, the trial Court as well as the revisional Court should grant opportunity to the petitioners to deposit the same and then to proceed to decide the application filed under Order 9 Rule 13 CPC in accordance with law. Therefore, his submission is that both the courts below have committed gross illegality in rejecting the claim of the petitioners.

8. On the other hand, learned counsel for respondent No.3 submitted that there is no illegality in the impugned orders passed by both the Courts below. The deposit of decreetal amount for consideration of application under Order 9 Rule 13 CPC is mandatory in nature. Therefore, both the orders impugned do not suffer from any infirmity or illegality and submitted that the writ petition being devoid of merit is liable to be dismissed. In support of his submissions, he placed reliance upon the following judgments:

(i) Kedarnath Vs. Mohan Lal Kesarwani and others, (2002) 1 AWC 502 (SC), paragraph No.8.

(ii) Smt. Kusum Devi Vs. Ram Ji Verma, (2015) 112 AllLR 295, paragraph Nos.7, 10 and 11.

9. Having heard the rival contentions advanced by learned counsel for the parties, I perused the material on record and the law reports relied upon by learned counsel for the respondent.

10. The proviso to Section 17 of Provincial Small Causes Courts Act, 1887 prescribes that deposit of decreetal amount is mandatory while moving an application seeking to set aside the ex-parte decree. Section 17 of the Act of 1887 is being quoted 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 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 judgment shall, at the time of presenting his application, either deposit in the court the amount due from him under the decree or in purs