PITAMBAR KUMAR TALREJA Vs. SHRI RAM MOHAN NIGAM

JUDGEMENT

(1.) This revision is directed against the judgment and decree passed by Sri Chandra Prakash, the District Judge, Kanpur, on 30-4-83, in Miscellaneous Case No. 390 of 1981, arising out of S.C.C. suit No. 48 of 1980.

(2.) The brief facts of the case are that the suit of Ram Mohan Nigam was decreed ex-parte against Pitambar Kumar Talreja, that original defendant of suit No. 48 of 1980, on 8-12-82. An application purporting to be under Order 9 Rule 13, C P.C. accompanied with an application under Sec. 5 of the Limitation Act and the affidavit dated 12-2-81, was moved. The application to set aside the ex-parte decree is paper No. 4-Ga 2 on the record of the lower court. The endorsement on the back of this application is that a tender of Rs. 7216.92 has been filed by the applicant in compliance with the requirement of Sec. 17 of the Provincial Small Cause Court Act. Application under Sec. 5 of the Limitation Act is paper No. 6-Ga 2. Since execution had already started by that day, therefore, on the same day, i.e. 12-2.81, an application for stay of the execution alongwith an affidavit was also moved. It is paper No. 8-C2. An application was also given for permission to deposit a sum of Rs. 5151.62 as the decretal amount and Rs. 1225.50 as expenses of the litigation plus Rs. 840.00 as arrears of rent for the period 19-8-1981 to 18-3-1982 and thus the total amount sought to be deposited came to Rs. 7216.92. A tender was enclosed. This application is paper no. 10-C 2 and is of the same date. On 13-2-81 the court passed an order on the order sheet to the effect that as t;;e decretal amount has been deposited. the execution shall remain stayed and the opposite party shall be informed.

(3.) The plaintiff of the case, who was the opposite party for these proceedings, filed objection 13.Ga 2 and one of the objections raised was that a sum of Rs. 124.40 which was the expense incurred by him in execution, was not deposited and, therefore, the deposit was short by this amount and hence there was no compliance of the provisions of Sec. 17 of the Provincial Small Causes Court Act. The matter came up ultimately before the learned District Judge on 30-5-81. For reasons recorded by him, he found that there was sufficient cause made out by the applicant for the setting aside of the ex-parte decree since he was not served with the summons. On the question of short deposit, he observed that a tender of Rs. 7 i 61.33 had been placed on the record which covered also the costs of the execution, amounting to Rs. 124.40, and this fact was asserted to by the opposite party, namely the plaintiff and in view of this, the contention of the opposite party on this score was given up. It means, therefore, that rightly or wrongly the plaintiff gave up his objection regarding the short deposit and the learned Judge came to the conclusion that there was complete compliance of the provisions of Sec. 17 of the Provincial Small Causes Court Act and sufficient cause in support of the defendants' contention. Consequently, he allowed the application under Order 9 Rule 13 C.P.C.