Mishra, J.-

l. This is a revision under section 25 of the Provincial Small Cause Courts Act, 1887 against an order dated 5-2-1975. whereby an application of the defendant applicant for setting aside the ex parte decree has been dismissed.

2. Facts essential for the decision of this revision are as under :-

The plaintiff non applicant had filed a suit for recovery of money amounting to Rs. 871.30. This suit was decreed ex-parte on 23-2-1974. On 21-3-1974, the defendant applicant submitted an application for setting aside the ex- parte decree, after complying with the requirement of provision of the proviso to section 17 (1) of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as 'the Act'). The ground on which this application was submitted was that the copy of the plaint was not served on the defendant applicant. Therefore there was no due service of the summons on him. The plaintiff non-applicant did not dispute the factum of non-supply of the copy of plaint to the defendant-applicant but contended that inspite of the failure to supply the copy the fact does not invalidate the service. The contention of the plaintiffs non-applicant found favour with the learned Small Cause Judge as a consequence where of the application submitted by the defendant applicant for setting aside the ex-parte decree has been dismissed. Hence this revision.

3. In this revision Shri Apte, learned counsel of the defendant-applicant contended that the provisions of Order 5, rule 2 of the Code of Civil Procedure read with section 17 of the Act apply to the situation. Accordingly, non-compliance thereof is an illegality and not an irregularity within the meaning of M. P. Amendment dated 16-9•1969 in Order 9, rule 13 of the Code of Civil Procedure.

4. Shri K. N. Gupta, learned counsel for the plaintiff-non-applicant argued in support of the impugned order and contended that:

(1) the summons admittedly served on the defendant-should be treated as a concise statement of the plaint within the meaning of rule 2 of Order 5. As such, even if this provision may be considered to be mandatory, it is said to be complied with substantially, and

(2) the-non-supply of the copy of the plaint is an 'irregularity' within the meaning of M. P. Amendment referred to above.

As such, there is no ground for interference with the impugned order.

5. Having heard the learned counsel for the parties, I have reached the conclusion that the revision deserves to be allowed. The Provincial Small Cause Courts Act, 1887, by section 17(1) enacts that (1) the procedure prescribed in the Code of Civil Procedure, 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 Cause 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 exparte or for a review of judgment shall, at the time of presenting his application, either in the Court the amount due from him under the decree or in pursuance of the judgment or give 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 realised in manner provided by section 146 of the Code of Civil Procedure, 1908."

In this case, the proviso of the aforesaid section stands complied with.

6. It is admitted between the parties that along with the summons which was served on the defendant-applicant copy of the plaint was not served. Therefore, the question which this revision poses is what is the effect of not serving a copy of the plaint with the summons on defendant-applicant and whether it is an illegality or mere irregularity with n the meaning of M. P. Amendment mentioned above.

7. As mentioned above, the procedure enacted by Order 5, rule 2 of the Code of Civil Procedure arc applic