AHMAD YAR KHAN Vs. KHEYALI

JUDGEMENT

(1.) This is an application for the revision of a decree and order of the Judge of the Small Cause Court of Budaun, dismissing the plaintiff's suit. The plaintiff had obtained an ex parte decree on 26 April 1932 and on 11 May the defendant made an application to set aside the ex parte decree, filing at the same time a security bond. Of this bond it may be said that it was eventually accepted by the Court, but at the time when it was filed it had not been verified by the two sureties. On 19 May the Court directed that the bond should be verified, and fixed 23 May for the next hearing. On the same date, 19 May, an endorsement on the security bond was made by the advocate for the defendant to the effect that the sureties were sufficient for the amount required. The bond was finally verified on 28 May, and Mr. S.P. Sinha, who has argued the case in favour of the applicant, points out that this date is two days beyond the period of limitation prescribed for making an application and providing security for the setting aside of an ex parte decree under the proviso to Section 17, Provincial Small Cause Courts Act. However the Court set aside the ex parte decree on 11 June and thereafter the suit was heard on its merits and the plaintiff's case dismissed.

(2.) The principal question that I have been asked to decide is whether the order setting aside the ex parte decree was passed in accordance with law. It is argued that the bond that was filed with the application by the defendant was an ineffective bond because it had not been verified, and in fact it did not become effective until 28 May. I have been referred to the case of Badlu Singh V/s. Panthu Singh AIR 1923 All 270. In this case a mortgage bond was proffered but it had not been registered, and this Court held in revision that the unregistered bond was no better than waste paper and that the application for setting aside the decree had not been presented in accordance with law. In another case which has been referred to Kiran Koomar V/s. Baijnath the circumstances are not analogous to those in the present case because the Court did not accept the bond, but I have also been referred to an unreported case in which the Court is said to have held that a bond proffered by the defendant with the application was held to be ineffective because it had not been properly stamped. I have not been able to procure the record of this case, but as from the description given above it appears to me to differ essentially from the present one, I have not thought it necessary to delay the decision of the present case in order to obtain the record as a matter arising out of it is still subjudice. Finally, in the case of Moti Lal Ram Chandar V/s. Durga Prasad , where the applicant was providing cash and not security, it was held that the application in a case like the present can only be considered to be a proper application "on the date after the proper deposit was made." There is however a Full Bench ruling of this Court in which the matter has been fully discussed, viz., the case of Ram Bharose V/s. Ganga Singh in which it has been held that where an applicant furnishes sufficient security with his application and the Court orders notice to issue to the other side before the expiry of the period of limitation allowed by Art. 164, the Court must be deemed to have by implication given the applicant a direction that he should furnish security of the kind actually furnished by him.

(3.) In the present case it is clear that the Court did not find any fault with the form or the amount of security, and did not reject it and that the delay between 11 May 1932 when the application was filed and 28 May 1932 when the bond was finally verified was due to the proceedings of the Court. The Court, either for its own satisfaction or for the protection of the decree-holder, desired to have the security bond verified, and no doubt it was perfectly correct in doing so. The fact however that it did so desire and did order the bond to be verified, does not prove that the bond as filed on 11 May was an ineffective bond. 4. It would not have become ineffective unless the sureties had dishonoured their signatures, and as they eventually verified them, the position was that the bond was a perfectly good bond, but there was a formality to be gone through before the Court felt justified in accepting it. It appears to me therefore that the case is entirely different from the one in which an unregistered bond which, on the face of it, was invalid as it stood, was presented to the Court, or the other one to which I have referred in which the bond needed to be stamped and had not been stamped. The decision of the Full Bench in the case of Ram Bharose V/s. Ganga Singh is in favour of the opposite party, and my conclusion therefore is that the Court did not act illegally in setting aside, the ex parte decree and hearing the suit on the merits. For the rest, the question is one of fact. The defendant denied the execution of the promissory note on which the plaintiff sued. It is true that expert evidence proved that his thumb impression had been affixed to it, but the Court has found that the defendant being an illiterate person he cannot be supposed to account for every thumb mark which he was made to put.