ETHIYAPPA GRAMANY Vs. ANGAPPA MAISTRY

JUDGEMENT

(1.) The petitioner seeks to revise the order of the District Munsiff of Madurantakam at Chingleput dismissing an application to set aside an exparte decree under Section 17, Provincial Small Cause Courts Act.

(2.) The petitioner alleging that he had come to know of the decree only twelve days back applied on 27 September "to have it set aside. The District Munsiff on 1 October ordered the petitioner to deposit the amount, as there was not time to test the draft security tendered. It was a suit disposed of in March and the records had to be got from the District Court. It has been held in Assam Mahomed Sahib V/s. Rahim Sahib [1920] 43 Mad. 579 that security need not be given along with, the application, provided that it is all complete and in order within the month prescribed by Art. 164, Lim. Act. If the District Munsiff thinks it improbable that ha will get the testing done within the period it is certainly within his discretion to say so and ask for a deposit, and he exercises that discretion entirely in the petitioner's favour. To set about testing the security and then to announce that the time had expired would work great hardship. And assuming that the petitioner has adequate security it is difficult be see how the demand for a deposit can unsuit him; for it is only a direction that he raise money in the open market upon security which he avers to be amply sufficient. It practically amounts to telling him to test the security for himself, and if he cannot raise the money it seems almost proof positive that the security is not sufficient. I do not find therefore that the learned District Munsiff did not exercise his discretion under Section 17 according to law.

(3.) The petitioner, however, would have it that the Court has no discretion at all and whether he furnishes security or deposit is entirely within his own option. It is difficult to gee how such a plea can be advanced in face of the perfectly plain language of the section; nor could such an option ever prevail in practice. Suppose that the petitioner elects to furnish a draft security, and before it is tested the time expires, what good then is his option? The fact is, that circumstances necessitate the direction of the Court and that is precisely why the statute provides for such direction. In Jhaboo Misir V/s. Havaldar Ternary it is held that the proviso to Section 17 is ambiguous and obscure, and the words "as the Court may direct," have no grammatical relation to the alternatives of deposit and security. The direction, contemplated does not relate to the security being to the satisfaction of the Court and to say: "to give security to the satisfaction of the Court as the Court may direct" would be very clumsy and a construction never intended by the framers of the proviso. The proviso therefore must be taken to mean that the nature and kind of the security must be according to the direction of the Court which should also be satisfied as regards its sufficiency.