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Allahabad High Court · body

1980 DIGILAW 44 (ALL)

Krishna Devi v. Shobha Chandra

1980-01-08

C.S.P.SINGH

body1980
ORDER C.S.P. Singh, J. - The plaintiff is the applicant in this revision. He had filed a money suit and an ex parte decree was passed on the 2nd December, 1975. The defendant moved an application under O. IX R. 13, Civil Procedure Code on the very day on which the ex parte decree was passed. In the application he alleged that he was a monthly tenant of the premises on a rent of Rs. 5/- per month, and that he had deposited the entire rent due up to the 30th June, 1975 at that rate in the Court of the Munsif, Kanpur. It was prayed that rent for the period subsequent thereto at the rate of Rs. 5/- per month be permitted to be deposited by him and that he may be allowed to furnish security for the balance of the decretal amount. It appears that by that time the decree had not been prepared, and the office made a tentative report that an amount of Rs. 904.25 was due to the plaintiff, and should be deposited by the defendant in view of S. 17 of the Provincial Small Cause Courts Act. On the basis of this report the Court ordered that half amount be deposited in the Court and security be given for the rest. This was done by the defendant. When the application came up for final disposal it was found that deposit made by the defendant was insufficient. The Munsif, however, allowed the application by recourse to S. 151, C. P. C., on the view that the deficiency had occurred on account of the wrong report of the office and as such the defendant should not be penalised for making a short deposit. The plaintiffs revision against this order failed. 2. Counsel for the plaintiff-applicant has urged that it was incumbent on the defendant to comply with the provisions of S. 17, Small Cause Courts Act, and inasmuch as the defendant had made a short deposit, the Court had no jurisdiction to set aside the ex parte decree. It was also urged that inasmuch as the defendant had withdrawn the amount after the ex parte decree had been set aside, before the disposal of the suit the Courts below were in error in setting aside the ex parte decree. It was also urged that inasmuch as the defendant had withdrawn the amount after the ex parte decree had been set aside, before the disposal of the suit the Courts below were in error in setting aside the ex parte decree. It was also urged that the security furnished by the defendant not being a registered one should not have been accepted by the trial Court. 3. Coming to the first contention. The proviso to S. 17 Small Cause Courts Act may be extracted :- "17. (1) The procedure prescribed in the Code of Civil Procedure. 1908, shall, save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits : 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 by him in this behalf, have directed. (2) Where a person has become liable as security under the proviso to sub-s. (1), the security may be realised in manner provided by S. 145. Civil Procedure Code, 1908. 4. A reading of this proviso shows that at the time of presenting the application for setting aside the ex parte decree the applicant has to deposit the amount due under the decree, or, in pursuance of the judgment, or to give security for the performance of the decree, in accordance with the directions of the Court obtained earlier. In the present case the decree had not been prepared, and as such the defendant had either to deposit the amount due from him in pursuance of the judgment, or, give such security for compliance with the judgment as the Court directed. The Court, as has been seen, accepted the defendant's application for depositing half of the amount due under the judgment and accepting security for the remainder. The Court, as has been seen, accepted the defendant's application for depositing half of the amount due under the judgment and accepting security for the remainder. The amount due under the judgment had been worked out by the office of the Court at a particular figure, and the defendant deposited half of that amount and gave security for the rest. This satisfied the requirement of the proviso, at the time when the application for setting aside the decree was made. The fact that a larger amount was due under the judgment when the matter was re-investigated, will not affect the position, as the judgment that stood did not specifically set out the exact amount which the defendant had become liable to pay as a result thereof. The amount payable in pursuance of the judgment could have been calculated by the defendant and equally so by the ministerial officials of the court who prepare decrees. The defendant acted prudently in relying on the figures calculated by the decree clerk of the Court. It cannot, in these circumstances be held that the defendant had not given security for the compliance of the judgment. Thus, the application for setting aside the ex parte decree was properly made. 5. The second contention is without substance. The amount deposited by the defendant and security furnished remained intact till such time that the ex parte decree was not set aside. It is only after the ex parse decree had been set aside that the amount and the security were withdrawn. Although the proviso has been incorporated in S. 17 to protect the interest of the decree holder, but its language does not justify the contention that the amount deposited or the security furnished should remain lying in the Court till such time that the suit is disposed of. The deposit and the security under the proviso have to remain intact during the pendency of the application for setting aside the ex parte decree. In case the application for setting aside the ex parte decree is dismissed the amount deposited will be adjusted towards the decree and the security furnished enforced for the same purpose. In the event of the decree being set aside the purpose of the deposit comes to an end, for there is no decree left to he satisfied and the defendant is free to withdraw this amount. In the event of the decree being set aside the purpose of the deposit comes to an end, for there is no decree left to he satisfied and the defendant is free to withdraw this amount. Counsel urged that this Court, had passed an order restraining the defendant from withdrawing the amount or the security at the time when this revision was admitted. Without deciding as to whether the defendant committed a breach of the direction of this Court, the withdrawal would not affect the validity of the application, for the deposit and the security have to be maintained in case where the application is allowed, only till such time that the application is not decided in favour of the defendant. 6. The third contention cannot be considered in this revision, for the revisionist has not challenged the order accepting the security furnished by the defendant. 7. The revision fails, and is dismissed with costs. The stay order is discharged.