KALISETTI PENCHALU SETTI Vs. POTIREDDI SUBBAREDDI

JUDGEMENT

(1.) On the 27 September, 1939, the respondent obtained an ex parte decree against the petitioner in a small cause suit. On the 31 December 1941, the respondent, in proceedings instituted by him for the execution of his decree, obtained an order attaching fifteen head of cattle belonging to the petitioner. It is the petitioner's case that he only came to know of the decree which had been passed against him when his cattle were seized. They were released on security being furnished for their production when called upon.

(2.) Art. 164 of the Limitation Act provides that the period of limitation for an application to set aside a decree passed ex parte shall be thirty days from the date of the decree, or, where the summons was not duly served, when the applicant has knowledge of the decree. Section 17 of the Provincial Small Cause Courts Act states that an applicant for an order to set aside a decree passed ex parte 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 such security for the performance of the decree or compliance with the judgment as the Court may on a previous application made by him in this behalf have directed. In Assan Mohamad Sahib V/s. Rahim Sahib , a Full Bench of this Court held that the provisions of Section 17 are mandatory but there is sufficient compliance with the section if the deposit of the decretal amount is made or security given within the period prescribed by the law of limitation for applications under the section although the deposit or the security did not accompany the application itself.

(3.) On the 15 January, 1942, the petitioner filed an application for an order setting aside the ex parte decree and at the same time applied for leave to furnish security. On the same day he submitted to the Court a draft bond. On the 27 January, 1942, the Court passed an order permitting security to be furnished in the terms of the bond and four days later the petitioner withdrew the draft bond from Court in order that a fair copy could be made and the bond executed. A bond in the same terms was drawn up on a stamped paper and executed on the 4 February, 1942. It was registered the next day and presented to the Court on the 7th February.