T R KALIAPERUMAL NAIDU Vs. POUNUSWAMI CHETTIAR

JUDGEMENT

(1.) These petitions are by the defendant against whom an ex-parte decree was passed by the Small Cause Judge of Kumbakonam in S.C.S. No. 2496 of 1922. He applied to set aside the ex-parte decree and, along with this application, he tendered security for the amount due under the decree as required by the proviso to Section 17 of the Provincial Small Cause Courts Act. The Small Cause Judge, without considering whether the security tendered was sufficient or not, and without rejecting the security tendered, passed an order to the effect that the amount should be paid into Court. This was not done, and the petition to set aside the decree was dismissed. C.R.P. No. 23 of 1924 is against the order insisting on the payment of money into Court, and C.R.P. No. 24 of 1924 is against the order refusing to set side the exparte decree. The question to be considered in C.R.P. No. 23 of 1924 is whether the Court was justified in insisting upon the amount being paid when, as a matter of fact, the petitioner had given security for the amount decreed along with his petition and when the Court had not passed any order rejecting the security tendered. The proviso to Section 17 states that:

(2.) The vakil for the petitioner relies upon the decision in Jagan Nath v. Chet Ram [1906] 28 All. 470 which has been referred to and followed by a Full Bench of this Court in Assan Mohamed Sahib v. Rahim Sahib [1920] 43 Mad. 579. In that case it was held that the deposit of the decretal amount or the furnishing of security was a condition precedent to the entertaining of the application to set aside the ex-parte decree, and there are observations at p. 471 to indicate that, when security is tendered along with the application, the Court has to decide upon the sufficiency of the security tendered. The Full Bench case in Assan Mohamed Sahib v. Rahiman Sahib [1920] 43 Mad. 579 also lays down that the giving of security or the deposit of money is mandatory, and it appears also to decide that this may be done before the 30 days period has expired. Anyhow the question in the present case is whether the Court was justified in insisting upon the deposit being made, without considering the sufficiency of the security tendered. The affidavit and the draft security bond show that property worth Rs. 7,000 was tendered as security and the only encumbrance on the property was for an amount of Rs. 3,800. The decree-holder does not appear to have objected to the security, and the record shows that the Judge on his own initiative insisted upon deposit being made. No reason has been shown to me for the Court persisting on the deposit of the amount, even after the judgment-debtor said he was not in a position to deposit the money. In any event proper discretion was not exercised by the Small Cause Judge, and the order insisting upon the money being deposited without going into the question whether the security was sufficient or not, cannot be upheld. I, therefore, set aside the orders sought to be revised. The petition to set aside the exp-arte decree will be reheard by the Small Cause Judge. It will be open to him to consider the question whether the security tendered was sufficient and, in case it is not sufficient, to require the party either to give further security or to deposit the amount into Court. In this Court the petitioner in C.R.P. No. 24 will have his costs. The costs in the lower Court will abide and follow the result. In C.R.P. No. 23 of 1924 each party will bear his own costs.