Dukhia Ganju v. Ramchandra Prasad — 1967 DIGILAW 48 (PAT)

Judgment Untwalia, J. 1. In Small Cause Court Suit No. 107 of 1963, filed in the court of the Subordinate Judge at Hazaribagh, the plaintiff- opposite party obtained on the 10th of February 1965, an ex parte decree against the defendant-petitioner for a sum of money which was less than Rs. 700. On the 6th of March, 1965, the petitioner, applied to the court below under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. Along with the said application, a duly stamped and properly executed security bond was also filed stating in the 5th paragraph of the application-- "That your petitioner is filing a security bond for the fulfilment of the decree in case the decree stands in the lone run." On this petition, the following order was made on 8-3-1965: "Record received. Register the petition as Misc. Case Serishtedar to check and report regarding the security filed by the applicant on the decretal dues and put up on 15-3-1965. Order No. 2 dated 15-3-65 runs thus :-- "Seristedar report received. Let the security bond be accepted. Issue notice to the O. P. fixing 12-1-65 for filing rejoinder, if any, on filing process." 2. The small cause court suit was fixed for hearing on 6-1-1965, on which date the plaintiff filed some applications for taking steps for issue of summonses to his witnesses. His prayer was allowed and the case was adjourned to 9-2-1965 for hearing. On this date again the plaintiff applied for time on the ground that his witnesses had not come on that date. Hazri was filed on behalf of the defendant. Time petition was allowed and, as the order stands, the case was adjourned to 10-2-1965 for hearing, that is to say only a days time was allowed. The petitioners case is that his lawyer was informed by Peshkar that the case had been adjourned to 10-8-1965. Accordingly his client was informed. He went back from the court. His case further is that on 15th February, 1965, he learnt that the suit had been decreed ex parte on 10-2-1965. The petitioners case is that his lawyer was informed by Peshkar that the case had been adjourned to 10-8-1965. Accordingly his client was informed. He went back from the court. His case further is that on 15th February, 1965, he learnt that the suit had been decreed ex parte on 10-2-1965. It is important to mention here that when the defendants lawyer came to know on 10-2-1965 that the case was going to be taken up on that date, he hurriedly flled a time petition stating therein that the case had been adjourned to 10-3-1965 for hearing, but it seems the date had been changed and the case had been fixed for 10-2-1965 Since his client was not present the case should be heard later. It was also stated in the petition that in the Diary (maintained by the court) the original date mentioned was 10-3-1965. This was a serious matter. The court below ought to have examined its diary and found out as to whether the original date mentioned in the diarv was 10-3-1965 or not, The order recorded on 10-2-1965 merely rejects the time petition filed by the defendant. It says not a word regarding the allegation of the original date mentioned in the diary being 10-3-1965 After rejecting this time petition, ex parte decree was passed as the defendants lawyer naturally could not proceed with his caae in absence of his client. 3. The court below has relected the application of the petitioner under Order 9, Rule 13 of the Code of Civil Procedure on two grounds:- - (i) that it has not been proved that the applicant was prevented on account of sufficient cause from appearing in court when the suit was called out for hearing; (ii) that there was non-compliance with the mandatory requirement of the proviso to Sub-section (1) of Sec.17 of the Provincial Small Cause Courts Act (hereinafter called the Act). The petitioner has come up in revision. The petitioner has come up in revision. 4 I will take up the second point first -- The proviso to Sec.17(1) of the Act, as it stood prior to its amendment brought about by Act IX of 1935 read 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 the Court the amount due 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." 5. Interpreting this proviso, it was held by a bench of this Court in Rajeshwari Prasad Singh V/s. Brahmanand Lal AIR 1933 Pat 279 that an unregistered-security bond is sufficient compliance with the law provided the delay in getting it registered is not due to any fault of the applicant himself. The test is whether the security which the party places in the hands of the court and which the court ultimately accepted was sufficient to enforce the obligation upon him. The facts of that case were that along with the application under Order 9 Rule 13 of the Code of Civil Procedure, the applicant had filed a duly executed security bond. Later an enquiry was ordered as to the sufficiency of the security offered indicating that the court was prepared to accept the security of the property. if it was found to be sufficient and that it did not insist on cash security There was a long delay in conducting the enquiry Ultimately, the security was found sufficient and the bond was registered much later after the expiry of the period of limitation of 30 days allowed for filing of an application under Order 9 Rule 13 of the Code of Civil Procedure The bond was accepted by the court. In such a situation, it was held by a bench that there was sufficient compliance with the requirement of the proviso to Sub-section (1) of Sec.17 of the Act as it then stood. In such a situation, it was held by a bench that there was sufficient compliance with the requirement of the proviso to Sub-section (1) of Sec.17 of the Act as it then stood. There has been some amendment in the wordings of the proviso by Act IX of 1935 The proviso after amendment runs thus: "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 the court the amount due from him 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 bv him in this behalf, have directed " In spite of the change in the wordings, cases decided by different High Courts have taken the view that it is a sufficient compliance with the requirement of the proviso if the applicant along with his application under Order 9 Rule 13 of the Code of Civil Procedure orally applies to the court to give some kind of security and the court allows him to do so, or in the same application makes that prayer which in substance, is allowed by the court in the sense of permitting him to furnish security instead of depositing decretal amount in cash This is tantamount to a direction by the court on the previous application made by the applicant and although an application under Order 9 Rule 13 of the Code of Civil Procedure was physically filed earlier, in the eye of law, it will be deemed to have been filed on the day when such direction had been given. The expression "such security in the amended proviso connotes the character of the security and does not necessarily mean the sufficiency of the security because time may elapse in examining the sufficiency of the security. And a suitor cannot be made to suffer because the court has taken time in examining the sufficiency of the securitv In the present case, the applicant had filed the duly executed security bond giving in security the property mentioned there. The nature of the security was known to the court. On the 8th March. And a suitor cannot be made to suffer because the court has taken time in examining the sufficiency of the securitv In the present case, the applicant had filed the duly executed security bond giving in security the property mentioned there. The nature of the security was known to the court. On the 8th March. 1965, the court therefore, will be deemed to have directed that the securitv tendered by the applicant will be acceptable provided it would have been sufficient Later on, it was found sufficient and accepted, although by that time the period of 30 days had expired. But on the 8th March 1965. the period of limitation had not expired and the application under Order 9 Rule 13 of the Code of Civil Procedure filed on the 6th March, 1965, will therefore, in the eye of law, be deemed to have been filed on the 8th March. 1965, when the court ordered the application to be registered on the kind of security tendered bv the applicant. 6. In Pilla Satyanarayana V/s. Vadaparthi B Ramabrahman AIR 1960 Andh Pra 230 it has been held by the Full Bench of Andhra Pradesh High Court that-- "Where security is tendered within the time and proves, even though tested after the time, eventually to be sufficient, the applicant must be deemed to have complied with the requirements of the proviso. The words "give such security may be construed to mean "tender such security." " I am in respectful agreement with this view. In my opinion, the direction to furnish security must be obtained from the court before the application under Order 9 Rule 13 is filed or will be deemed to have been filed. But that direction is only in regard to the fact that the court does not insist for deposit of cash money and permits the applicant to give security which he tenders. The question of sufficiency of security or the registration of the security bond, may take time and this may be completed later, then in that event, as observed by the bench of this Court in AIR 1933 Pat. 279 he takes the risk and his application for setting aside of ex parte decree is liable to be thrown out if the security is found insufficient on that ground alone. 7. 279 he takes the risk and his application for setting aside of ex parte decree is liable to be thrown out if the security is found insufficient on that ground alone. 7. Finally, in the order under revision, the court below has held that the security tendered by the petitioner was not sufficient because under Sec. 47 of the Chota Nagpur Tenancy Act he had no power of disposal of the property and it could not be sold even in execution of the decree. I may observe that if a security bond, accepted as valid or sufficient ex parte without hearing the other side, is challenged to be invalid or insufficient by the other side, it is open to the court to re-examine this question in presence of the other side and on re-examination if it is found that the security offered was not proper or sufficient or the bond was not valid, still then the position in law will be that the security bond which was accepted as sufficient and valid ex parte will be finally deemed to have been held as insufficient and invalid and that will again entail dismissal of the application under Order 9 Rule 13 of the Code of Civil Procedure on that ground lalone. To that extent, the argument advanced on behalf of the petitioner is not acceptable to me. But the view taken by the court below has got to be held to be erroneous in view of the full bench decision of this court in Ramdayal Sahu V/s. Hari Shankar Lal Sahu, 1967 B. L. J. R. 78. I, therefore, hold that the security offered by the petitioner was valid and sufficient and it will be available to the opposite party if again he obtains a decree against the applicant. 8. On question as to whether sufficient cause had been made out for setting aside the ex parte decree, I am of the view that the court below, on the facts and in the circumstances of the case, has committed an error of law. Learned advocate, who had appeared for the defendant petitioner in the court below, was examined as a witness on this point. His evidence has not been rejected. The comment merely is that the Peshkar ought to have been examined. Learned advocate, who had appeared for the defendant petitioner in the court below, was examined as a witness on this point. His evidence has not been rejected. The comment merely is that the Peshkar ought to have been examined. It was not the business of the petitioner to examine the Peshkar who had given wrong information to his lawyer. The very fact that an application was filed on 10-2-1965 stating therein that in the diary the date mentioned was 10-3-1965 goes to support the case of the petitioner to the fullest extent. It is difficult to believe that the lawyer would have invented such a false, case on the 10th February, 1965 by mentioning it in the time petition filed on that date, tt is also unlikely that the case would have been adjourned only for a day when the witnesses, as mentioned in the time petition filed by the plaintiff on 9-2-1965, were to come from Gaya to be examined To me it seems that some manoeuvring was done and although the defendants lawyer was informed that the case had been adjourned to 10-3-1965, in the order sheet the date mentioned was 10-2-1965 and the case was allowed to be taken up ex parte on account of unfair means practised by the plaintiff. 9. In the result, I allow the application in revision filed under Sec.25 of the Act and set aside the order of the court below I allow the application filed by the petitioner under Order 9 Rule 13 of the Code of Civil Procedure and set aside the ex parte decree passed in small cause court suit on 10-2-1965. The suit shall now proceed to disposal according to law. I shall direct the parties to bear their own costs of this proceeding throughout.