YUSUF AKRAM Vs. ARFAN ALI KHAN

JUDGEMENT

(1.) We are invited in this Rule to set aside an order of the Small Cause Court Judge dismissing an application for revival of a suit which had been dismissed for default. The Small Cause Court Judge held that the plaintiff; had failed to deposit, as required by law, the amount of costs due from him to the defendant under the decree or to furnish security to the satisfaction of the Court. In our opinion, this view is clearly erroneous. The proviso to Sub- section (1) of Section 17 of the Provincial Small Cause Courts Act lays down that an applicant for an order to set aside a decree passed ex parte shall make the requisite deposit or give security. But an applicant for an order to set aside an order of dismissal for default is plainly not an applicant for an order to set aside a decree passed ex parte. This view is in accord with the decision of this Court in the case of Jamina Bibi v. Seri Chand Bhagat 2 C.W.N. 693. The matter has now been placed beyond controversy by Clause (2) of Section 2 of the Code of 1908, which lays down-that an order of dismissal for default is not a decree.

(2.) The result is that this Rule is made absolute, the order of the Small Cause Court Judge set aside and the case returned to him in order that the application for revival of the suit may be heard on the merits. As the Rule is not apposed we make no order for costs.

(3.) This judgment will govern Rule No. 121 of 1915 in which a similar order will be drawn up.