KHETRA DOLAI Vs. MOHAN BISSOYI

JUDGEMENT

(1.) THIS is a defendant's application directed against an order of the Small Cause Court Judge, Berhampur, rejecting his application under O. 9 R. 13 of the Code of Civil Procedure. The learned Judge rejected the application on the ground that the application is not maintainable, since it did not comply with the provisions of S. 17 of the Small Cause Courts Act.

(2.) MR. Ramdas, learned counsel on behalf of the petitioner contended that he had complied with the provisions of S. 17 within the period of limitation. In other words his contention is that he had filed a draft security bond within thirty days of the ex parte decree. The proviso to S. 17 says 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. An identical question came up before this Court in the case of Manu Sadangi v. Baraju Das, Civil Revn. No. 255 of 1958 since reported in Orissa Judicial Decisions p. 604. In that case I took the view that the proviso to S. 17 of the Small Cause Courts Act lays down that an application for an order to set aside a decree passed ex parte or for a review of the judgment shall at the time of presenting his application either deposit in 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. This proviso to Sec. 17 was introduced by Act IX of 1935. The amendment adopted the view that an applicant applying for a review of judgment or for an order to set aside an ex parte decree must at the time of presenting his application do one of the two things, namely, either deposit in court the amount due under the decree or give such security for performance of the decree as the court may have directed on a previous application made by him in this behalf. If he does not make the previous application, he must put in the decretal amount in full. If he has made the previous application and succeeded in getting an order for security in cash, he can, instead of depositing the decretal amount, furnish the security directed by court. It is no longer open to the court to extend the time within which the deposit is to be made or the security furnished.