KANIHYA LAL Vs. GUNWANT RAI AGGARWAL

JUDGEMENT

(1.) The only point which requires consideration in this case is. whether after the abolition of the Court of Small Causes, which passed the decree in question, an application for restoration under Order IX Rule 13 could be entertained by the Munsif without any security. Both the Courts below have found that the provisions of Section 17 of the provincial Small Cause Courts Act being mandatory the decree could not be set aside due to not depositing the money or furnishing security.

(2.) It appears that the suit was decreed ex parte by the Judge Small Cause Court, Muzaffarnagar, on 2nd June, 1959. It seems the Munsif having the power of Small Cause Court was transferred in July, 1959, and was succeeded by an officer who had no such powers. An application for setting aside the ex parte decree under, Order 9 Rule 13 was made on 12th September, 1959, but neither any money was deposited nor any application for leave to furnish security was given nor any security was given at any stage. This application was rejected by the Munsif who, it appears, had also Small Cause Court powers on the date the application was decided. The appeal was rejected by the district Judge. It is against these Orders that the present application has been filed.

(3.) It has been contended by Sri K.C. Agarwala that Section 17 prescribes the procedure which is to be followed in Small Cause Court cases and by that section the procedure prescribed in Civil Procedure Code has been made applicable to all Small Cause Court suits. Under section 35 where a Court of Small Causes has been abolished then the proceedings in respect of any case whether before or after the decree can be taken in a Court where such proceedings could be instituted. The contention is that after the abolition of the Court of Small Causes the Munsif had jurisdiction to entertain the application and consequently under the procedure prescribed by the Code no security was necessary to be given. His submission is that Proviso to Section 17 has no application.