PILLA SATYANARAYANA Vs. VADAPARTHI RAMABRAHMAM

JUDGEMENT

(1.) The following question has been referred to the full Bench : "What is the meaning to be given to words give such security for the performance of the decree in the Proviso to Section 17 of the Provincial Small Cause Courts Act (Act IX of 1887)?"

(2.) The facts which have given rise to this reference may be briefly stated. The respondent filed S. C. S. No. 365 of 1953 on the file of the District Munsifs Court, Narsapur, for recovery of a sum of Rs. 260-14-3 on foot of a promissory note. On 20/08/1953, an ex parte decree was passed in his favour. Within five days thereafter, the petitioner filed I.A. No. 1243 of 1953 for setting aside the ex parte decree. Along with that application he filed a draft security bond offering to give his immovable property as security for the suit amount. The respondent raised objections with regard to the adequacy of the security, but on 2/11/1953, his objections were overruled and the petitioner was called upon to file the fair bond. On 14/11/1953, the petitioner filed in court a registered security bond. The learned District Munsif held that as the registered security bond had not been filed within thirty days from the date on which the petitioner had knowledge of the decree, the application for setting aside the decree was barred by limitation. It is this order that is the subject-matter of revision. It is contended for the petitioner that as the draft security bond was filed in time and as ft was finally accepted by the Court, be must be deemed to have furnished the security as required by Section 17 of the Act within the time prescribed. Now Section 17(1) which prescribed the procedure to be followed in a Court of Small Causes, after its amendment in 1935, is in the following terms : "(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 the 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 applicant 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." Prior to this amendment, the Proviso ran thus : "Provided that an applicant for an order to set aside a decree passed ex parte shall, at the time of presenting his application either deposit in the Court the amount due from him under the decree or give security to the satisfaction of the court for the performance of the decree, as the Court may direct."

(3.) The expression "give security to the satisfaction of the Court as the Court may direct," gave rise to ambiguity and there was a good deal of controversy in the High Courts as to whether toe proviso was directory or mandatory. One view was that the words "at the time of presenting his application" were incongruous with the words "as the Court may direct," and that therefore, they must be taken as directory and not mandatory, and if an applicant made the deposit or gave the security within the time fixed by the Court, though after the expiry of the period prescribed, the requirements of the proviso were sufficiently complied with. A second view was that the words in the proviso were mandatory and an applicant should, at the time of making his application, deposit the decree amount to tender the security for payment of the same. Another view was that though an application was unaccompanied by the deposit or the tender of security, still if before such application was rejected and before the time prescribed, such deposit was duly made, the application might be regarded as satisfying the requirements of law. This conflict of views was sought to be set at rest by the Legislature by enacting the amendment in 1935. The terms of the proviso to Section 17(1) are now mandatory, and it is incumbent on a party seeking to have an ex parte decree set aside either to deposit the decree amount at the time of presenting the application or to furnish security as directed by the Court on a previous application made for that purpose.