MARIMUTHU GOUNDAR Vs. PONNAMMAL AND ORS.

JUDGEMENT

(1.) THIS Civil Revision Petition has been posted before a Bench at the instance of one of us on account of the important practice in procedure involved.

(2.) THE facts are : An ex parte decree was passed against the second defendant in S.C.S. No. 1852 of 1950 on 19th November, 1952. The second defendant filed I.A. No. 391 of 1952 on 20th November, 1952, to set aside the ex parte decree. No security was furnished along with the application. It was stated in the affidavit that the petitioner was prepared to give security for the decree amount. During the pendency of I.A. No. 391 of 1952 the second defendant filed I.A. No. 392 of 1952 on 6th December 1952, requesting the Court to accept the security bond. On 19th December 1952, adhesive stamps for eight annas were affixed to a separate sheet of paper and that sheet was attached to security bond. The District Munsif passed orders on 10th December, 1952, that the security was accepted and posted the application for counter -statement and disposal. The plaintiff opposed both the petitions I.A. Nos. 391 and 392 of 1952 on the ground that the security bond was not filed and registered within the period of limitation.

(3.) UNDER the proviso to the Section 17(1) as it stands now after its amendment in 1935, the applicant for setting aside the ex parte decree or for review of judgment shall and must, at the time of presenting the application, do one of the two things, namely either deposit in the Court the amount due from him under the decree or give such security for the performance of the decree as the Court may have directed on a previous application made by him in this behalf. The proviso clearly predicates the existence of an application to be made by an applicant who is not prepared to deposit the decretal amount in cash to ask for the filing of a security as a substitute therefore. If he does not make the previous application, he must deposit the money in full. If he has made it and been successful in getting an order for security instead of depositing the money in full, he may furnish the security which the Court may have previously directed.