KRISHAN KUMAR Vs. HAKIM MOHAMMA

JUDGEMENT

(1.) THE revision application made under section 115 of damages. THE suit was decreed ex parte on 12-7-1976. On 27-7-1976 the defendant-applicant moved an application under order 9, Rule 13 o of S Procedure read with section 17 of the Provincial Small Causes Courts Act (hereinafter referred to as "the Act"). A security bond for a sum of Rs 2000/-executed by one Rati Ram was filed along with the application THE trial court found that the provisions of section 17 of the Act had not Been complied with inasmuch as the applicant had not obtained any direction from the court in the matter of giving security bond and secondly the security S which had been filed with the application was neither duly stamped nor was registered under the Indian- Registration Act. It, therefore, dismissed the application. A revision was filed against that order before the District Judge Saharanpur THE Vth Additional District Judge, Saharanpur, who decided that Son application by an order dated 9-7-1977, confirmed the order of e trial court He found that the security bond was not valid and effect and the requirements of the proviso to section 17 (1) of the Act had not been complied with. THE revision was, accordingly,. dismissed with costs. THE present revision has been filed in this court to revise that order. THE question which falls for consideration is as to whether the requirements of the proviso to section 17 (1) of the Act were complied with Section 17 (1) of the Act reads as follows:- "17 (1) THE procedure prescribed in the Code of Civil Procedure 1908, shall save in so far as is otherwise provided by that Code or by this Act be procedure followed in a court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits. Provided that an application for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application, 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 performance of the decree or compliance with the judgment as the court may, on a previous application made by him in this behalf, have directed. THE words "such security for the performance of the decree or compliance with the judgment as the court may, on a previous application made by him in this behalf, have directed" at the end of the proviso were substituted by Provincial Small Causes Courts (Amendment) Act section 22, for "security to the satisfaction of the court for the performance of the decree or compliance with judgment as the court may direct. It would appear that a significant change was made by the aforesaid amendment in the proviso to section 17 (1) and the obscurity which was in the earlier was removed. In the amended proviso now there is no obscurity. THE applicant has to do in all two things and that he has to do such of the two things as may be directed to him by the court. THE choice of the alternative lies, as to the performance on the part of the applicant, with the court and not with the applicant himself. THE two things that the applicant is required to do are (1) deposit all the amount due from him under the decree or in pursuance of the judgment, and (2) to give security to the satisfaction of the court for the performance of the decree or the compliance with the judgment as the court may have directed on a previous application made by him in this behalf. If he does not make a previous application, he must pay the money in full. THE proviso does not contemplate of a written application for furnishing security in lieu of deposit of the amount in court. THE application may be oral. Thus, an application for setting aside an ex parte decree can be regarded as validly presented and competent only when there is such a proper application seeking direction from the court permitting the person making an application to give security. Another basic condition is that compliance of the requirements is to be made within the period of limitation provided for which is 30 days under Article 164 of the Limitation Act (Article 123, New Act). THE scope of the words "give such security for the performance of the decree" occurring in this proviso came up for consideration before a Full Bench of the Andhra Pradesh High Court in Pilla Satyanarayana v. Vadaparthi Ramabrahman (A.I.R. 1960 A.P. 230) and the conclusion arrived at was "where the security is tendered within the time and proves, even if tested after the time, eventually to be sufficient, the applicant must be deemed to have complied with the requirements of the proviso." THE words "give such security". Next comes the question of the nature and type of the security bond. It should be on a stamp paper in accordance with the Stamp Act. Where a security bond requires registration, an unregistered security bond is sufficient compliance with the law provided the delay in getting it registered is not due to any fault of the applicant himself. THE question is whether the security which a party placed in the hands of the court and which the court ultimately accepted was sufficient to enforce the obligation on him It may also be stated that a security bond requires no order of acceptance of the bond it only indicates that the court considered the security sufficient, and did not give validity to the bond. Thus, if the bond required registration and it is not registered it cannot be regarded as a valid and effective bond. It is in the background of this legal aspect that it has to be seen as to whether there was compliance with the requirements of the proviso to sec. 17 (1) of the Act. It is not disputed that no previous application was made by the applicant in this behalf for directions of the court. Straightaway an application under order 9, Rule 13 of the Code of Civil Procedure was given and along with it a security bond was also given. That bond is a composite one inasmuch as the person executing the bond offered personal security as also security of immovable property. In so far as the security of immovable property is concerned it required compulsory registration. It was written on a general stamp paper of Rs. 5/- whereas it should have been written on a general stamp paper of Rs. 30/-. Even afterwards no attempt was made by the applicant to get that bond registered. It cannot be said that within the period of limitation provided by law, there was an application made by the applicant satisfying the requirement laid down under the proviso to sec. 17 (1). It was, therefore, not a competent application and hence was rightly dismissed by the court of first instance and the order was rightly confirmed by the lower revisional court. In view of the foregoing discussion, the revision application is dismissed with costs.