S ABDUL RAHIM Vs. ANIKUN NISSA

JUDGEMENT

(1.) A small cause court suit filed by the opposite party against the petitioner was decreed 'ex parte' on the 9th November, 1962. On the 8th December, 1962, the petitioner filed an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the 'ex parts' decree. This application was insufficiently stamped. On the same date), he filed another insufficiently stamped application along with a chalan to deposit the decretal amount as required by the proviso to Section. 17 of the Provincial Small Cause Courts Act, 1887. The application under Order 9, Rule 13 was filed on the 30th day, that is, on the last day of the period fixed by the Limitation Act. On an office report being made, the deficit stamps were supplied on or before the 20th December, 1962. The chalan, however, was passed on the 3rd January, 1963, and the money was actually deposited in the treasury on the 4th January, 1963. The Court below has held that the petitioner was prevented by sufficient cause from appearing when the suit was called cut for hearing, but the application has been held to be not maintainable because the decretal money was not deposited in time. The petitioner has, therefore, come up in revision to this Court

(2.) In support of this application, Mr. Sarwar Ali, learned advocate for the petitioner, submitted that he did whatever was in his power to do on the 8th December, 1962 for the deposit of the money in Court, and he cannot be held responsible for the delay made by the Court in passing the; chalan. Counsel, therefore, submitted that in substance and in law the deposit was made at the time of the filing of the application when the Court accepted the money by passing the chalan subsequently. He placed reliance upon a decision of the Madras High Court in Koilpillai Samban v. Sappanimuthu Samban, 72 Ind Cas 220 : AIR 1923 Mad 354 (2) and upon two decisions of this Court in Bijoy Singh v. Kirtyanand Singh, AIR 1932 Pat 342 and Sudarsan Mahto v. Radhika Prasad Singh, AIR 1960 Pat 311. Mr. J. K. Prasad, appearing for the opposite party, submitted that the requirement of the proviso to Section 17 of the Provincial Small Cause Courts Act is mandatory and the mere filing of the chalan by the petitioner was no compliance with the said requirement either in substance or in law. He also placed reliance upon decisions, which are not necessary to be discussed in any detail.

(3.) It is by now well settled and it was not disputed by the learned counsel for the petitioner also that the requirement of the proviso to Section 17 of the Act is mandatory; and if there was no compliance with the said requirement either in substance or in law the application, for setting aside the ex parte decree could not be allowed. The only question, therefore, which falls for my determination is as to whether the petitioner had complied with the requirements of the said proviso.