K PERUMAL MUDALIAR Vs. UMMAR KOYA

JUDGEMENT

(1.) The petitioner herein filed an application on 7-2-1949, to set aside the ex parte decree passed against him on 7-1-1949 and tendered as security shares of the face value of Rs. 3,000 in the South Indian Bank, Trichur and also deposited a sum of RS. 200 as required under Section 17, Provincial Small Cause Courts Act. An objection was taken by the plaintiff that shares which were not fully paid up could not be accepted as security and therefore, there was no compliance with the requirements of Section 17, Provincial Small Cause Courts Act. There, upon, the petitioner defendant filed an application to excuse delay in furnishing security and deposited along with that application a Sum of Rs. 1,000 to make up the decretal amount. This application to excuse delay was resisted by the plaintiff on the ground that the Court had no jurisdiction to entertain such an application as Section 5, Limitation Act, is not applicable to the provisions of Section 17, Provincial Small Cause Courts Act. The Subordinate Judge upholding the objection raised on behalf of the plaintiff, dismissed the petition for excusing delay filed by the defendant under Section 5, Limitation Act, and relied on a decision in Penchalu Setti v. Potireddi Subba Reddi, 1943-2 M. L. J. 671 : (A. I. R. (30) 1943 Mad. 520), in support of his view, which I think has absolutely no bearing on the question for decision in this case. In this civil revision petition the correctness of that case is challenged.

(2.) It is urged by the learned counsel for the petitioner that the view of the lower Court that the Court has no jurisdiction to apply Section 5, Limitation Act, to proceedings under Section 17, Provincial Small Cause Courts Act, is erroneous and is opposed to rulings of this Court. An identical question arose in Sudalaimuthu Kudumban v. Andi Reddiar, 45 Mad. 628 : (A.I.R. (9) 1922 Mad. 186), and it was laid down by Oldfield and Venkatasubba Rao JJ., that the delay in making the payment required by the proviso to Section 17 can be excused in an application under Section 5, Limitation Act. The observations of the learned Judges at p. 632 of the report may be usefully extracted :

(3.) It is contended by Mr. Ramakrishna Aiyar, learned counsel for the respondent, that the decision in Sudalaimuthu Kudumban v. Andi Reddiar, 45 Mad. 628 : (A. I. R. (9) 1922 Mad. 186), is not good law, as it runs counter to the principle laid down in the Full Bench decision in Assan Mahomed Sahib v. Rahiman Sahib, 43 Mad. 579 : (A. I. R. (7) 1920 Mad. 562 F.B.). There is absolutely no force in this contention and it is ill-founded. The effect of the Full Bench decision was considered by the learned Judges in Sudalaimuthu Kudumban v. Andi Reddiar, 45 Mad. 628 : (A. I. R. (9) 1922 Mad. 186), and they held that their view was entirely consistent with the tenor of the judgment of the Full Bench. It must be remembered that the Full Bench did not have to consider the applicability of Section 5, Limitation Act to Section 17, Provincial Small Cause Courts Act. There the learned Judges were only concerned with the question whether Section 17, Provincial Small Cause Courts Act was mandatory or not and whether the security deposit made within thirty days though it did not accompany the application for setting aside the ex parte decree under Order 9, Rule 13, Civil P. C., was sufficient compliance with the requirements of Section 17, Provincial Small Cause Courts Act, and they answered both the questions in the affirmative. It follows that the decision in Sudalaimuthu Kudumban v. Andi Reddiar, 45 Mad. 628 : (A. I. R. (9) 1922 Mad. 186), and the subsequent decisions that followed it are not inconsistent with the principle laid down in the Full Bench and they hold the field.