BHOLA Vs. MTRAM RATI

JUDGEMENT

(1.) This revision petition originally came up for hearing before our brother Braund and, he having expressed the opinion that the case involved a question of law of sufficient importance to justify its being heard by a Bench, specially as there were decisions which appeared to lay down divergent views, the case has been laid before us. The facts are these: The opposite party, Mt. Ramrati, instituted a suit, No. 1182 of 1942, in the Court of Small Causes at Allahabad against one Bindeshri and his son, Bhola, for the recovery of a certain sum of money which she alleged was due to her on account of the rent of a certain house. The suit came up for hearing on 13 November 1942, and, the defendants being absent, it was decreed ex parte. On 20 April 1944, Bhola, who was defendant 2 in the suit, filed two applications in the Court of Small Causes. In one of these applications, No. 16C on the record, he stated that along with that application he was filing another application praying that the ex parte decree be set aside and that he was not able to deposit cash security at that time. He accordingly prayed that the Court might permit him to furnish the personal security of one B. Ganga Prasad. In the second application - No. 170 on the record - he prayed that, for the reasons stated in the affidavit filed along with the application, the ex parte decree passed on 13 November 1942 be set aside and the suit be heard afresh. The material statements made in the affidavit were that the summons had not been duly served on him, that he had had no knowledge of the suit and that he had come to know of the ex parte decree on 17 April 1944 when the Court Amin had gone to his house to attach his property in execution of the decree. In the order sheet an order was entered on that date stating that an application for setting aside the ex parte decree had been filed and that it should be put up on 4 May 1944, with an office report. On the margin an entry was made in these words : "Application for filing security bond."

(2.) On 4 May 1944, the Court passed an order directing notice to issue to the opposite party and fixing 21 July 1944. It will be noticed that both these orders were on application No. 170. The application for permission to furnish the personal security of B. Ganga Prasad was put up before the Court on 21 April and the learned Judge ordered that it should be put up with the record. It was not until 8th May 1944, that the matter was put up before him again and he wrote the following order on the application : "Security of property may be given. Personal security will not be accepted." Bhola, apparently being able by this time to raise sufficient funds to enable him to furnish cash security, offered, on 12 May 1944, the necessary amount in cash by means of a tender as prescribed by the rules. The tender was accepted and the money was deposited in the Treasury on 16 May 1944. The case came up for hearing on the date fixed, viz., 21 July 1944, and the learned Judge, after hearing the arguments of the parties, reserved judgment. On 24 July 1944, judgment was pronounced and the application praying that the ex parte decree be set aside, i.e., application No. 170 was dismissed on the ground that, the security having been furnished on 12 May 1944, and not at the time of the presenta-tion of the application for setting aside the ex parte decree, No. 170, on 20 April 1944, the applicant must be deemed to have failed to comply with the terms of the proviso to Section 17(1), Provincial Small Cause Courts Act, and that therefore the application could not be entertained although the cash security had been furnished within the period of limitation prescribed for making such an application. Bhola has filed this revision petition against that order.

(3.) From the facts stated above certain points emerge which must be noted. They are as follows : (1) The two applications having been filed on the same day, it is open to the petitioner to contend - particularly in view of the order in which the applications are numbered on the record - that his application for permission to give the security for the performance of the decree instead of depositing the amount shown in the ex parte decree as being due from him (to be hereafter referred to as the application for permission), was a "previous application" within the meaning of the proviso to Section 17(1) of the Act. (2) It was no fault of the petitioner that the Court did not at once take into consideration the application for permission and pass orders thereon but kept it pending for a number of days. It is possible that, owing to congestion of work in the Courts below, they are not able to pass orders immediately even on applications which ought to be disposed of at once. The fact remains, however, that litigants presenting such application are not to blame for that. It is probable that litigants, realising that delay is likely to occur consider it safe to file the application for setting aside the ex parte decree also on the same date on which they file the application for permission as they are apprehensive that orders on the application for permission may not be passed until after the expiry of the period of limitation prescribed for presenting the application for setting aside the ex parte decree. (3) The petitioner deposited the necessary amount of money almost immediately after the Court passed its order on the application for permission, and within the period of limitation. (4) The Court having ordered on the application for setting aside the ex parte decree that notice do issue to the opposite party, it is open to the petitioner to contend that there was no reason for him to suppose that another application for setting aside the ex parte decree should be filed when the money was deposited.