MURARI LAL Vs. MOHAMMAD YASIN

JUDGEMENT

(1.) This is an application in revision under Section 25, Small Cause Courts Act. The applicant here was the plaintiff in the Court below. He brought a suit in the Court of Small Causes at Meerut for recovering a certain amount from the opposite party as arrears of rent for a shop, and obtained an ex parte decree on 7th January 1937. On 16 January 1937, the opposite party made an application under Order 9, Rule 13 for getting that ex parte decree set aside. No cash security for costs was deposited in the Court along with that application, nor was any application previously made to the Court for permission to file a security bond. A security bond was however attached to the application. The applicant objected on the ground that the opposite party was not entitled to put in that security bond without having previously applied for the Court's direction to that effect. That objection was dismissed and the Court allowed the application made by the opposite party and set aside the ex parte decree on payment of Rs. 5 as costs. The applicant then proceeded to make another application for review of that order, but the learned Small Cause Court Judge refused to interfere with his previous order allowing the application and setting aside the ex parte decree. The applicant has now come up in revision against the order of the learned Small Cause Court Judge.

(2.) The simple argument on behalf of the applicant is that the provisions of Section 17, Provincial Small Cause Courts Act, which has recently been amended by Act 9 of 1935, are mandatory and the lower Court exceeded its jurisdiction in entertaining the opposite party's application in defiance of those mandatory provisions. The relevant portion of Section 17 runs as follows: Provided that an applicant for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in Court the amount due from Mm 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.

(3.) The last portion of the above Proviso has been added by Act 9 of 1935. A similar provision contained in Section 17 before the recent amendment ran as follows: Either deposit in the Court the amount duo from him under the decree or in pursuance of the judgment, or give security to the satisfaction of the Court for the performance of the decree or compliance with the judgment, as the Court may direct.