MRITYUNJOY GANGULY Vs. BHOLANATH GANGULY

JUDGEMENT

(1.) The only point raised in this petn. for revn. is whether under Section 17, Provincial Small Cause Cts. Act, as it now stands, after the amendment under Act, IX [9] of 1935, it is competent for the Ct. of Small Causes to accept security for the performance of the decree as may be filed not along with the original appln. for setting aside the ex parte decree under Order 9, Rule 13, C. P. C. but done subsequently.

(2.) The ex parte decree in this case was passed on 25-6-1948. The deft. opposite party made an appln. on 26-7-1948, alleging that he had no knowledge of the ex parte decree before 22-7-1948. He accordingly prayed for the restoration of the suit with a prayer for accepting, security for the due performance of the order as the Ct. may pass thereafter. The learned Small Cause Ct. Judge, however, directed the deposit of the decretal amount in cash on or before 13-8-1948. The prayer for permission to file a security bond was renewed on this date. This prayer was allowed. The petnr. was permitted to furnish security by 20-8-1948. The security was duly filed & accepted by the Ct.

(3.) The objections raised by the decree-holder to the appln. under Order 9, Rule 13, C. P. C. were of a two-fold nature. It was contended that the deft. had knowledge of the decree having been passed long before the date alleged by him & that the security to be furnished as under the proviso to Section 17, Provincial Small Cause Cts. Act had not been so done along with the appln. & accordingly the Cts. had no jurisdiction to allow such deposit to be made on 20-8-1948.