SURAJ PRASAD Vs. BALDEO

JUDGEMENT

(1.) A decree was passed by a Court of Small Causes at Farrukhabad, on 8th December 1926, and was transferred for execution to the Court of the Munsif of Tilhar in the Shahjahanpur District. The judgment-debtor Baldeo was arrested in execution of the decree and in the Tilhar Court he gave security of a third person for his appearance in the Tilhar Court on 30 April 1927. Subsequently, on 9th March 1927, he applied to the Farrukhabad Court for rehearing, but at that time did not deposit in Court the amount due from him under the decree, nor gave security for the performance of the decree. His petition of rehearing was granted on 29 March 1927, the Farrukhabad Court holding that sufficient security was given on 4 March 1927, and there was no necessity for the filing of fresh security. In this opinion the lower Court was mistaken, because the security given in the Tilhar Court was not for the satisfaction of the decree, but for the appearance of the defendant in that Court on 30 April 1927. The plaintiff, if he obtained a decree, would not be able to recover it from the surety who gave security at Tilhar.

(2.) The provisions of Section 17, Provincial Small Causes Courts Act, 9 of 1887, are mandatory and the Court does not acquire jurisdiction until cash is deposited or security is given. This has been held by this Court in Badlu Singh V/s. Panthu Singh A.I.R. 1923 All. 270. A Full Bench of the Madras High Court held in 1920 that these provisions were mandatory and the deposit may be made and security given within the period prescribed by the law of limitation for applications for rehearing, i.e., Art. 164, Lim. Act, 1908: V.M. Assan Mohammad Sahib V/s. M.E. Rahim Sahib [1920] 43 Mad. 579. In the present case, even accepting that the defendant became aware of the decree against him on 4 March 1927, the date of the security given in the Tilhar Court, the security in the Farrukhabad Court was not given till the 12 April 1927, i.e., more than 30 days after the time allowed under the Lim. Act for an application for rehearing.

(3.) On behalf of the respondent Mr. Baleshwari Prasad pointed out that the applicant-plaintiff had taken Rs. 5, which the lower Court had fixed by way of damages for rehearing, and argued that the appellant had submitted to the order and could not appeal. The question here, however, is of jurisdiction and no action of any party can confer jurisdiction on the Court where it does not exist.