PARMANAND Vs. URI SUPPLY STORES

JUDGEMENT

(1.) IN a defendants application for setting aside an ex parte decree, the defendant was ordered to furnish security to the satisfaction of the Court for the performance of the decree. The defendant not having furnished security with in time fixed by the trial Court, the trial Court extended time on 19 -7 -2011. On the next date of hearing, i.e., 16 -8 -2011, the defendant furnished security. Ultimately when the case came up for final hearing on 29th February, 1956, the trial Judge held that the extension of time made by his predecessor for furnishing security was not an order according to law. He, therefore, dismissed the defendants application on 29 -2 -1956.

(2.) THE learned Judge, Small Causes has not applied his mind properly to the facts of the case and the law bearing on those facts. Proviso to S. 16 of the Jammu and Kashmir Small Cause -Courts Act runs as follows: "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 security to the satisfaction of the Court for the performance of the decree -or compliance with the judgment, as the Court may direct." Section 16 of the Jammu and Kashmir Small Cause Courts Act corresponds to S. 17 of the Indians Provincial Small Cause Courts Act. In the year 1935 the proviso to S. 17 of the Provincial Small Cause Courts Act was amended and the proviso in its amended form runs as follows: "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. According to this amendment the words "as the -Court may on a previous application made by him in this behalf have directed have been added to the proviso to S. 17 of the Provincial Small Gauss Courts Act, but no such amendment has been made in our Act with the result that proviso to S. 16 of our Act is exactly the same as it was in India before the amendment of 1935 was introduced.

(3.) NOW let us see what was the state of law in India before the amendment was made, for it would be that law which would govern the facts of the present case, and not the law which obtained in India after the amendment of 1935. Before the present amendment, a Full Bench of the Lahore High Court see Gedi Mal v. Huna Mal, AIR 1931 Lah 332 A has laid down that: "The provisions of S. 17 that an applicant for an order to set aside an ex parte decree shall at the time of presenting his application either deposit in 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 directs, are directory and not mandatory and it is open to the Court in appropriate cases to extend the time within which the deposit is to be made or security furnished." This view has been followed by many other High Courts in India. It is obvious that this authoritative pronouncement of the Lahore High Court will govern the facts of the present case. Therefore the extension of time made by the trial Court is quite in conformity with the law as obtains here. The amendment of 1935 made it necessary for the defendant applicant to submit a previous application to the court asking for directions whether he should deposit cash security or furnish some other sort of security. But prior to 1935 it was not necessary to do so in India. Nor is it necessary for an applicant to do so in this state. Under the circumstances I find that the order of the trial court is wrong in law. I set aside this order and order that the defandantâ„¢s application for setting aside the ex parte order be heard and decided according to law. Costs to abide the result.