(SHER) AHMAD KHAN Vs. ALI BUX

JUDGEMENT

(1.) This is an application in revision against an order of the Additional Munsif of Muzaffarnagar exercising jurisdiction as Judge of the Court of Small Causes.

(2.) On 6 August 1929, a decree for Rs. 157-10-0 was passed ex parte in favour of the applicant Sher Ahmad Khan against Ali Bakhsh the opposite party who was the defendant. Ali Bakhsh was arrested in execution of the decree and brought before the Munsif. On 26 October 1929, Ali Bakhsh presented a petition to the Court to set aside the ex parte decree and to comply with the provisions of Section 17, Provincial Small Cause Courts Act, a security bond was executed by Genda Mal in which Genda Mal undertook to produce before the Court when called upon to do so the judgment-debtor and on failure of his ability to produce the judgment- debtor he would pay up the amount due to the decree-holder. The Court fixed 23 November 1929, for hearing the application to set aside the ex parte decree. On that date the decree-holder pointed out to the Court that no security bond had been filed in pursuance of Section 17, Provincial Small Cause Courts Act. On 4th January 1930, the Court directed the defendant to deposit the amount of the decree in cash and he did so on 23 January 1930. On 25 January the ex parte decree was set aside and it is against this order that the present application in revision has been filed.

(3.) It has been contended by Mr. Pandey for the petitioner that in this case there was really a non-compliance with the provisions of Section 17, Provincial Small Cause Courts Act and in any event it was the duty of the judgment-debtor to have obtained an order from the learned Judge on 26 October 1929 whether the security that was being offered could have been offered by the judgment-debtor in lieu of the deposit of the sum of money which had. been decreed in favour of his client the plaintiff. Mr. Pandey has referred me to the cases of Sri Bhagirat Chaudhri V/s. Balakran Saithwar A.I.R. 1922 All. 29 and Badlu Singh v Panthu Singh A.I.R. 1923 All. 270, in support of his contention that there has been a non compliance with the provisions of Section 17, Provincial Small Cause Courts Act; He has further referred to the case of Jhabbu Misir V/s. Havaldar Tiwari , in support of his contention that the Court's direction as regards security could have been taken when an application for setting aside an ex parte decree was presented to the Judge of the Court of Small Causes.