VITHU MHALI Vs. VITHU MAHADJI

JUDGEMENT

(1.) IN Small Cause Suit No. 2185 of 1924, on the file of the Court of Small Causes, Akola, an ex-parte decree was passed against the present applicant-defendant on 25-11-24. On 18-12-24 he applied for setting aside that decree, and with his application gave a surety bond of one Pandhari Vithu. The Clerk of Court made an endorsement that the record should be put up before the Court on 3-1-25, and on that date security was accepted by Mr. Ghosh, the then Judge, as sufficient. Mr. Telang succeeded him, and on the 27th July rejected the application on the ground that the proviso to Section 17 of the Provincial Small Cause Courts Act as to a deposit of security being made at the time of presenting the application is mandatory and not directory; and as the security was accepted after the period of limitation, he rejected the application. The question before me is whether the proviso to the section mentioned above is directory or mandatory, and whether the time for making a deposit or giving security is extendable at the Court's discretion.

(2.) THE question is not free from difficulty. In Azmatullah Khan v. Ahmad a very similar case the Court held that the judgment-debtor had substantially complied with the requirements of Section 17; and in Loipillai Samban v. Sappanimuthu Samban A.I.R. 1923 Mad. 354 it was decided that even if there was a delay in depositing the amount the Court had power to extend the time under Section 5 of the Limitation Act. A similar view was taken in Sudalaimuthu Kudumban v. Andi Reddiar A.I.R. 1922 Mad. 186. In a case, somewhat similar to the present, Ganga Dhar Baij Nath v. B.B. & C.I. Railway , the Court held in favour of the person presenting the application to set aside an ex-parte decree. In Assan Mohamed Sahib v. Rahim Sahib [1920] 43 Mad. 579 their Lordships of the Madras High Court held that the provisions of Section 17 (1) are mandatory. I am aware of the decision of Ismay, J. C, in Umrao Jiwan Patel v. Munnumian Musalman [1906] 2 N.L.R. 23; but the question of application of Section 5 of the Limitation Act was not discussed in that case. I am inclined to the view that the proviso as to a deposit or security being made at the time of presenting an application is merely directory and not mandatory; and if, as in the present case, security is given at the time of presenting the application for setting aside the decree, the requirements of the proviso are satisfied. I would not hesitate to apply the provisions of Section 5 of the Limitation Act to the present case, and I do so.

(3.) WITH these remarks I send the case back to the lower Court. The parties in this Court will bear their own costs. I fix pleader's fees at Rs. 15.