HAJI AHMED HAJI IBRAHIM Vs. ABDULHUSSEIN TAYABALLI

JUDGEMENT

(1.) The question for decision in this application is whether an applicant who applies to set aside a decree passed ex parte must, at the time of presenting his application, either deposit the amount due under the decree or give security to the satisfaction of the Court for the performance of the decree, or whether if an application is made within time and followed by a deposit within time, there would not be a sufficient compliance with the terms of the proviso to Section 17 of the Provincial Small Cause Courts Act.

(2.) It appears that in this case a decree was passed by the Small Cause Court, and the defendant, who was out of British India, knew of the result of the suit on December 22, 1929. On January 11, 1930, he made an application to set aside the ex parte decree under Order IX, Rule 13, and offered to furnish security. On January 21, 1930, he furnished the security within thirty days provided by Article 164 of the Indian Limitation Act. The application was heard on March 8, 1930, and the learned Subordinate Judge held that the security not having been furnished at the time when the application was made in accordance with the proviso to Section 17 of the Provincial Small Cause Courts Act, the application failed, and rejected the application.

(3.) It is urged on behalf of the applicant that even though the proviso to Section 17 is mandatory, it should be considered that the proviso has been sufficiently complied with, if the application is made and the deposit or security is furnished within time. Apart from decided cases, it appears that the provisions of Section 17 are mandatory, and the proviso says that an applicant 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 security to the satisfaction of the Court for the performance of the decree or compliance with the judgment, as the Court may direct. The concluding words of the proviso "as the Court may direct" may govern both the making of the deposit and the giving of the security. If it is necessary for an applicant to get the directions of the Court as to whether the deposit of the amount is to be made or the giving of the security would be sufficient, it would be impossible to comply with the proviso by doing either of these things at the time of presenting the application. When the application is filed, he has to apply to the Court for directions as to whether a deposit is to be made or security is to be given, and some time must necessarily elapse between the presenting of the application and directions of the Court. Assuming that the proviso gives discretion to the applicant either to deposit the amount or to give security, still the concluding words of the proviso " as the Court may direct" might govern the latter part of the proviso and the applicant will have to get directions as to the form of the security which the Court might direct, because if the deposit is made no Court will take any objection to the deposit of the amount due from the applicant under the decree or in pursuance of the judgment. It appears, therefore, that if the proviso is strictly construed, it will be impossible to give effect to it, for directions of the Court will be necessary before he does either of the two things required by the proviso.