MOHAMMED NAEEM Vs. ILLRD ADDL DISTT JUDGE FAIZABAD

JUDGEMENT

(1.) AMARBIR Singh Gill, J. This judg ment shall dispose of both the writ peti tions, as common question of law is in volved. The short question which requires decision in these two writ petitions is the application of proviso to Section 17 (1) of Provincial Small Cause Courts Act, 1887.

(2.) IN writ petition No. 2801 (R/c) of 1983 an exparte decree dated 17-3-81 passed by the Judge Small Cause Courts, Faizabad for ejectment of the petitioner as also for arrears of rent with costs and pendente lite and future damages on payment of requisite Court fees is in dispute. The petitioner filed an application for setting aside the exparte decree on 2-7- 81 and also deposited the decretal amount. He, however, deposited costs etc. subsequently on 3-9-81. Objec tion to the tender were filed by the decree holder. The Judge Small Cause Courts vide judgment dated 22-9-82. copy of which is Annexure-3, relying upon proviso to Sec tion 17 of the Act dismissed the application for setting aside the ex pane decree. Petitioner filed a revision, which also met with the same fate and was dismissed on 16-5-83, copy of judgment is Annexure-4.

(3.) THE proviso to Section 17 (1) of the Act reads as under:- "provided that an applicant for an order to set aside a decree passed exparte or for a review of judgment shall, at the time of presenting his ap plication, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give such security for the perfor mance of the decree or compliance with the judg ment as the Court may, on a previous application made by him in this behalf have directed. "