RANI AWASTHI Vs. FIRST ADDITIONAL JUDGE

JUDGEMENT

(1.) This writ petition is directed against the order dated 18.11.2010 passed by First Additional Small Cause Judge, Kanpur Nagar rejecting petitioners' application No. 4C under Order IX Rule 13 C.P.C. for recall of ex parte decree and judgment dated 24.08.1993 passed in S.C.C. Suit No. 78 of 1991 decreeing the suit with cost, ex parte.

(2.) Learned counsel for the petitioners submitted that he had deposited Rs. 2350/- in purported compliance of Section 17 of Provincial Small Cause Court Act, 1887 (hereinafter referred to as "Act, 1887") and also filed an application for furnishing security of entire amount but without considering said application of petitioner the Trial Court held that petitioners have not complied with Section 17 of Act, 1887 and, therefore, benefit thereof is not available. He said that this approach is illegal. He submitted that Revisional Court has also failed to exercise its jurisdiction in this matter by dismissing petitioners' revision vide judgement dated 05.04.2011. He placed reliance on a decision of this Court in Mohd. Hafeex Vs. Chandra Mohan Srivastava,2010 2 ARC 356 in support of contention that an application made before Trial Court seeking direction to furnish security alongwith an application for setting aside ex parte decree should be taken up by Trial Court, firstly, by considering application submitted for furnishing security.

(3.) The issue of Section 17 of Act, 1887 of Act, 1972 is now covered by this Court's decision in Prem Chandra Mishra Vs. IInd Additional District Judge, Etah & Ors., 2008 3 ARC 928 where this Court, following earlier decision in Lachhi Ram Vs. First Additional District Judge, Meerut and others,1984 1 ARC 4; Shiv Shankar Singh Vs. IVth A.D.J. Kanpur,1997 1 ARC 491, in paras 18, 22 and 24 of the judgment held as under: