RAMKHELAWAN CHOUDHURI Vs. DUNIALAL CHAUDHURI

JUDGEMENT

(1.) In this case an application was made to set aside an ex parte decree of the Small Cause Court Judge of Darbhanga. By Section 17, Provincial Small Cause Courts Act, the applicant is obliged at the time of presenting his application either to deposit in Court the amount due under the decree or to give security to the satisfaction of the Court for the performance of the decree. A draft security bond hypothecating immoveable property was tendered to the Court; and after the Nazir had reported that the security was sufficient the bond was duly executed by the applicant and filed in Court within the period of limitation.

(2.) The applicant should then have registered the bond, but it was not registered and it has not been registered up to this time. The Small Cause Court Judge treating the security as sufficient proceeded to hear the application which was ultimately allowed. Mr. L.K. Jha on behalf of the decree-holder in the suit argues that the Small Cause Court Judge had no jurisdiction to entertain the application under Order 9, Rule 13 until security had been furnished; and since the unregistered bond could not be regarded as security within the meaning of Section 17, Small Cause Courts Act, the Judge acted throughout without jurisdiction and his order should be set aside. In Jayappa Lokappa V/s. Shivangouda Dayamangouda AIR 1928 Bom 42 it was held that a security bond executed in favour of the Court in compliance with an order made under Order 41, Rule 5 did not require registration; but that view has not been adopted in this Court; nor (so far as I know) in any other High Court in India.

(3.) In the Madras High Court in N. Samayya V/s. T. Subbayya (1908) 31 Mad 330 it was held that a bond of this kind was invalid and would not affect the property hypothecated unless it had been registered. Similar views have been taken in other High Courts. In Allahabad in Badlu Singh V/s. Panthu Singh, A.I.R. 1923 All. 270, an unregistered mortgage bond had been presented in time, but it was held that the bond was invalid, that the applicant had failed to comply with the requirements of the law, and that the order of the Small Cause Court Judge restoring the suit must therefore be set aside as made without jurisdiction.