PUNDLIK VITHOBA Vs. GANPAT AND ANOTHER

JUDGEMENT

(1.) THE facts leading to this application for revision are shortly these: The plaintiff applicant obtained an ex. parte decree against the defendants, non-applicants on 24th September 1929 in the Court of Small Causes, Akola. An application to set aside the ex-parte decree was presented by the defendants on 19th October 1929 under the provisions of Order 9, Rule 13, Civil P.C., read with Section 17(1), Provincial Small Cause Courts Act, but no deposit as required by the proviso to the latter section was furnished with the application nor any security given. After the expiry of the period of 30 days, prescribed by Article 164 of the Limitation Schedule, the defendant moved the Court, on 26th October 1929, to grant them one week's time to furnish security and time was given by the Court to do this till 9th November 1929. The plaintiff contested the defendants' application in the lower Court on three grounds, namely (1) that the same was not maintainable because it was not accompanied by the necessary deposit or security as required by Section 17(1), Provincial Small Cause Courts Act; (2) that the lower Court had no discretion in extending the time for furnishing security; and (3) that in any case the security having been furnished beyond the period of 30 days from the day the ex parte decree was passed the Court had no jurisdiction to condone the delay under Section 5, Lim. Act.

(2.) WHILE admitting the force of the first contention the lower Court held that since it had the power to extend the time for giving security under Section 5, Lim. Act, the application was within time. It accordingly set aside the ex parte decree. It is against this order that the present application for revision is filed by the plaintiff. , It is rightly contended by the learned pleader for the applicant that the proviso to Section 17, Provincial Small Cause Courts Act, 1887, is mandatory and the applicant was bound to make the deposit or give security along with his application and not at any subsequent stage of the proceedings and that the Court had no power to enlarge time for making the deposit or furnishing of the security: Chandulal v. Motilal Bansilal AIR 1930 Nag 137. It is also, equally clear that except where there are special rules made by the High Court extending the provisions of Section 5, Lim. Act, to applications for setting aside ex parte decrees the Courts will not have the power to have recourse to the provisions of Section 5 ibid. In Sudalaimuthu Kudumban v. Andi Reddiar AIR 1922 Mad 186 and Pandharinath v. Thakordas Shankardas AIR 1929 Bom 262 the provisions of Section 5, Lim. Act, were applied in extending the time prescribed by Article 164, Limitation Schedule, but it was so done because of the rules framed by both these High Courts under Section 122, Civil P.C., extending the provisions of Section 5. Lim. Act, to applications to set aside ex parte decrees.

(3.) SINCE this Court has not framed any rules under Section 122. Civil P.C., extending the application of Section 5, Lim. Act, to applications for setting aside ex parte: decrees it is obvious that the precedents of the Madras and Bombay High Courts cannot apply to this province. I therefore hold that the lower Court had no power under the law to extend the period of limitation prescribed by Article 164 of; the Limitation Schedule and bring the: application of the non-applicants for setting aside the ex parte decree in time. The result is that this application for revision is allowed and the order setting aside the ex parte decree passed by the lower Court set aside. The non-applicants must pay all the costs in this as well as in the lower Court to the applicants. Pleader's fee Rs. 20.