SAMSUDDIN MIA Vs. MUNSI ADAL ALIM

JUDGEMENT

(1.) This revisional application has been filed by the defendant-opposite party against the order of a Subordinate Judge at Birbhum in the Small Cause Court jurisdiction dismissing an application under Order 9, Rule 13 of the Code of Civil Procedure filed by him for setting aside an ex parte decree passed against him.

(2.) The admitted facts relevant for this application may be stated in short. An S. C. C. Suit was filed by the opposite party-plaintiffs Abdul Alim and Sk. Ziauddin against the present petitioner. Samsuddin Mia for realisation of arrears of rent and the defendant appeared to contest and filed written statement challenging the claim of the plaintiffs. On the date fixed for hearing, as the defendant was not present, an ex parte decree was passed to the tune of Rs. 608.88 NP. including costs of the suit. The defendant, thereafter, filed a petition under Order 9, Rule 13 of the Code of Civil procedure for setting aside the ex parte decree alleging that he had sufficient reasons for non-appearance on the date of hearing and along with that application, he filed a receipt granted by the local Registration office showing that he had executed a security bond in favour of the Court of the Subordinate Judge to the extent of Rs. 608.88 NP. relating to some properties registered on the very day when the said application was filed. Besides it was stated in the petition under Order 9, Rule 13 that as a security for payment of the decretal dues the petitioner had executed and registered, a security bond in favour of the Court as would be evidenced by the receipt filed. It was prayed in the petition that in view oi the statements made in the petition, the S. C. C. Suit might be restored by setting aside the ex partp decree. The application was filed on 30-3-1974. On that very day the application was registered as Miscellaneous Case No. 17 of 1974 and the petitioner was directed to take steps for service upon the opposite party by 10-4-1974. On 10-4-1974 the petitioner filed requisites and there was a direction for issue of the notices upon the opposite parties fixing 10-5-1974 for return and order. The opposite parties appeared and filed objection and the opposite parties raised objection that the application was not maintainable and should be rejected on the ground that the proviso to Sub-section (1) of Section 17 of the Provincial Small Cause Courts Act was not complied with. The contention of the opposite party was that as the defendant did not obtain an order from the Court as to the nature of the security bond to be executed by him upon a previous application in the absence of any deposit of cash money, the Court had no right to register the case and proceed with the application. The court below heard the learned Advocates of both the parties and without going into the merits of the case on the question of law, has held that in the absence of any deposit of decretal amount and unless permission of the Court is obtained to furnish security, the defendant cannot file an application under Order 9, Rule 13, C. P. Code and that such application even if filed or registered, would be invalid. It appears that the learned Subordinate Judge acting within the jurisdiction of the Small Cause Court was of the view that the Court had no power to entertain an application for setting aside the decree unless order is given for furnishing security and such security is furnished by the party as would be accepted by the Court. As in the present case the defendant did not file an application for permission for furnishing security and did not file any security with previous approval of the Court, the defendant was not entitled to get any relief.

(3.) I have heard Mr. Hossen, the learned Advocate for the petitioner and Mr. Mukherjee, the learned Advocate appearing on behalf of the opposite parties. The main question before me is whether there was substantial compliance of the proviso to Section 17 (1) of the Provincial Small Cause Courts Act by the defendant when an application was filed for setting aside an ex parte decree. Mr. Mukherjee's contention is that according to the proviso to Sub-section (1) of Section 17 of the Provincial Small Cause Courts Act, the first requisite for the defendant for filing an application for setting aside the ex parte decree is to deposit the decretal amount in cash along with the application or the defendant may, without depositing cash, file a petition for setting aside the ex parte decree, but before that he is to file an application in writing for obtaining permission to file security to the extent of the decretal amount and furnish such security for the safety of the decretal dues as would be directed by the Court. Upon furnishing such security earlier or at best with the filing of such security, the defendant could be entitled to file an application for setting aside the ex parte decree.