Pitambar Kumar Talreja v. Shri Ram Mohan Nigam — 1985 DIGILAW 175 (ALL)

JUDGMENT V.P. Mathur, J. - This revision is directed against the judgment and decree passed by Sri Chandra Prakash, the District Judge, Kanpur, on 30-4-83, in Miscellaneous Case No. 390 of 1981, arising out of S.C.C. suit No. 48 of 1980. 2. The brief facts of the case are that the suit of Ram Mohan Nigam was decreed ex-parte against Pitambar Kumar Talreja, that original defendant of suit No. 48 of 1980, on 8-12-82. An application purporting to be under Order 9 Rule 13, C P.C. accompanied with an application under Section 5 of the Limitation Act and the affidavit dated 12-2-81, was moved. The application to set aside the ex-parte decree is paper No. 4-Ga 2 on the record of the lower court. The endorsement on the back of this application is that a tender of Rs. 7216.92 has been filed by the applicant in compliance with the requirement of Section 17 of the Provincial Small Cause Court Act. Application under Section 5 of the Limitation Act is paper No. 6-Ga 2. Since execution had already started by that day, therefore, on the same day, i.e. 12-2.81, an application for stay of the execution alongwith an affidavit was also moved. It is paper No. 8-C2. An application was also given for permission to deposit a sum of Rs. 5151.62 as the decretal amount and Rs. 1225.50 as expenses of the litigation plus Rs. 840/- as arrears of rent for the period 19-8-1981 to 18-3-1982 and thus the total amount sought to be deposited came to Rs. 7216.92. A tender was enclosed. This application is paper no. 10-C 2 and is of the same date. On 13-2-81 the court passed an order on the order sheet to the effect that as t;;e decretal amount has been deposited. the execution shall remain stayed and the opposite party shall be informed. 3. The plaintiff of the case, who was the opposite party for these proceedings, filed objection 13.Ga 2 and one of the objections raised was that a sum of Rs. 124.40 which was the expense incurred by him in execution, was not deposited and, therefore, the deposit was short by this amount and hence there was no compliance of the provisions of Section 17 of the Provincial Small Causes Court Act. The matter came up ultimately before the learned District Judge on 30-5-81. 124.40 which was the expense incurred by him in execution, was not deposited and, therefore, the deposit was short by this amount and hence there was no compliance of the provisions of Section 17 of the Provincial Small Causes Court Act. The matter came up ultimately before the learned District Judge on 30-5-81. For reasons recorded by him, he found that there was sufficient cause made out by the applicant for the setting aside of the ex-parte decree since he was not served with the summons. On the question of short deposit, he observed that a tender of Rs. 7 i 61.33 had been placed on the record which covered also the costs of the execution, amounting to Rs. 124.40, and this fact was asserted to by the opposite party, namely the plaintiff and in view of this, the contention of the opposite party on this score was given up. It means, therefore, that rightly or wrongly the plaintiff gave up his objection regarding the short deposit and the learned Judge came to the conclusion that there was complete compliance of the provisions of Section 17 of the Provincial Small Causes Court Act and sufficient cause in support of the defendants' contention. Consequently, he allowed the application under Order 9 Rule 13 C.P.C. 4. Then an application for review of the judgment was moved by the landlord-plaintiff on 30-4-1983. This is paper No. 24-G 1 on the lower courts' record and the main basis for this petition was the fact that Rs. 124.40 on account of the execution costs had not been deposited and to this extent the concession made at the time of allowing the petition under Order 9 Rule 13 C.P.C. was wrong and hence the judgment required review. The matter came up before the learned District Judge (Sri Chandra Prakash), who by the impugned order has allowed the review application holding that compliance of the proviso to Section 17 was wanting. This has given rise to the present revision. 5. The first point for consideration would be as regards the scope of review. There is plethora of cases to lay down that there should be a mistake apparent on the face of record to entitle a review of the judgment. In the present case, in my opinion, there is no such mistake apparent on the face of record. 5. The first point for consideration would be as regards the scope of review. There is plethora of cases to lay down that there should be a mistake apparent on the face of record to entitle a review of the judgment. In the present case, in my opinion, there is no such mistake apparent on the face of record. Even a wrong concession made by the counsel for the plaintiff on the basis of which the court held that there was compliance of the proviso to Section 17 of the Small Causes Court Act would not be taken to be a mistake apparent on the face of record. So far as the record goes, there is no mistake of law and the order that was passed was justified in view of the facts that came before the court. 1 am, therefore, not convinced that there was any manifest error on the face of record; an error which could be self evident and did not require examination of record and hearing of the parties, on the basis of which the review of the earlier judgments could be made. 6. On merit, again, I feel that the learned Judge of the court below Vas not justified in coming to the conclusion that there has been non-compliance of the proviso to Section 17 of the Provincial Small Causes Court Act, which reads as under : "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 given (such security for the performance c,f the decree or compliance with the judgment as the court may, on a previous application made by him in this behalf, have directed)." 7. It will be apparent that what is required to be deposited at the time of presenting the application for setting aside the ex-parte decree is the amount due from the applicant under the decree or in pursuance of the judgment. In the alternative he can 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. In the alternative he can 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. Thus the amount due under the decree and in pursuance of the judgment has to be deposited. The words 'the' used prior to the words' decree and judgment' makes it specific and clear that they refer to the judgment and decree in question, i.e., which are sought to be set aside. If in pursuance of the judgment and decree certain sum is not due, it cannot be covered by the proviso to Section 17. In a number of cases, some of which are cited below, it has been held that pendentelite and future mesne profits are covered by the proviso to Section 17 and should be deposited in order to get benefit of that provision of law because there are amounts due in pursuance of the judgment, if judgment allows the pendentelite and mesne profits. The cases are as follows : (i) Smt. Karmo Bai v. II Additional District Judge, Nanital and others., 1983 A.R.C. 455. (ii) Smt. Gayatri Devi v. District Judge, Gorakhpur and others, 1952 A.R C. 447. In this case it was held that this amount has to be deposited even if the landlord has not paid court fee on it and even if it has not been calculated in the decree. (iii) Saligaram and others v. Smt. Sita Devi, 1979 U.P R.C.C. 82.' Here, again, it was held that even if the decretal amount did not include it, the liability to deposit the mesne profits and compensation for use and occupation was still of the defendant-tenant. (iv) M/s P.C. Dwadashahrani v. Additional District Judge and others., 1981 U.P. R.C.C. 302. 8. These cases, however, simply interpret the proviso to Section 17. The every language of this proviso is quite clear. The deposit has to be made of the amount due under the decree or in pursuance of the judgment and if the judgment and decree mention that the landlord is entitled to mesne profits pendentelite and future that amount will also have to be deposited. The every language of this proviso is quite clear. The deposit has to be made of the amount due under the decree or in pursuance of the judgment and if the judgment and decree mention that the landlord is entitled to mesne profits pendentelite and future that amount will also have to be deposited. But the question remains as to whether the amount of expenses of the execution has also to be deposited in order to obtain the benefit of the proviso to Section 17 of the Provincial Small Causes Court Act. The language of the proviso does not justify such an interpretation and I am of the view that it was not necessary for the tenant to deposit the expenses of the execution also because these expenses are not covered by the term amount due under the decree or in pursuance of the judgment. 'Even otherwise also the law in this matter has been very clear. Starting from the year 1921 in the case of Basudeo Ram Sarup and others v. Mool Chand Nemichand, AIR 1921 Allahabad 144. it was held that where the decree gives in- correct figure as to the amount due and the defendant deposits the amount given in the decree, he complies substantially with the provisions of the law. 9. In the case Firm Bisesar Ram Dassi Rain v. Firm Hari Kishan Prahlad Rai, AIR 1925 Allahabad 412. it was held that the amount due under the decree refers to the amount which is due at the time when the decree is passed. In the case of Dullan Prasad v. Rajeshwari Bibi, AIR 1977 Allahabad 151. it was held that once application for depositing of cash security is accepted by the Court, there is sufficient compliance of the requirements of the second part of the proviso and even if the security furnished by the applicant is a little less than the amount due under decree, but if it satisfies the Court, no exception can be taken to any defect in the deposit of the cash security amount. In this case the suit was decreed for ejectment of Dullan, for Rs. 713.40 as arrears of rent and for future and pendentelite damages at the rate of Rs. 21 /- per month. The defendant-applicant moved an application for setting aside the ex-parte decree and on the same day sought per- mission to deposit a sum of Rs. In this case the suit was decreed for ejectment of Dullan, for Rs. 713.40 as arrears of rent and for future and pendentelite damages at the rate of Rs. 21 /- per month. The defendant-applicant moved an application for setting aside the ex-parte decree and on the same day sought per- mission to deposit a sum of Rs. 924/- as cash security. 10. This application was allowed. The Court set aside the exparte decree finding the cause to be sufficient. The plaintiff went up in revision and it was allowed on the technical ground that there had been no compliance of the requirement of Section 17 of the Provincial Small Causes Court Act. This Court took notice of the fact that while moving the application for restoration, the tenant had also moved application for permission to deposit the cash security of Rs. 924/- and this amount included the arrears of rent and damages at the rate of Rs. 21/- per month, i.e , Rs. 713.40 as rent and Rs. 189 00 as damages for use and occupation. The total came to Rs. 902.40 and security by way of deposit was of a larger amount. Costs could not be deposited as the decree had not been prepared till then and the applicant could not know the exact amount of costs that had accrued in the case. It was held that there was sufficient compliance of the proviso to Section 17. 11. Lastly in the case of Mahananad Maheshwari and another v. U.P. State Electricity Board and another, 1982 Addl. C.J., 402. relying upon the case of Dullan Prasad (supra) it was held by this Court that the provisions of Section 17 of the Provincial Small Causes Court Act were substantially complied even if deposit was short by Rs. 380.80 if the Court had permitted the deposit' on the basis of the earlier application moved. In the present case also, as I have pointed out above, an application for permission to deposit was moved on 12-2-81 vide paper No. 10-Ga 2 and on 13-2-81 the Courts' order was that the decretal amount has been deposited. In pursuance of this, the ejectment was stayed and information was given to the opposite party. This amounts to acceptance of the deposit and it will be in compliance with the second part of the proviso to section 17 of the Provincial Small Causes Court Act. 12. In pursuance of this, the ejectment was stayed and information was given to the opposite party. This amounts to acceptance of the deposit and it will be in compliance with the second part of the proviso to section 17 of the Provincial Small Causes Court Act. 12. In the result, I come to the conclusion that it was not a fit case in which the learned District Judge should have reviewed his earlier order. The revision, therefore, merits to be allowed. 13. The revision is allowed with costs and the judgment and order passed by Sri Chandra Prakash, District Judge Kanpur on 30-4-83, in Miscellaneous Case No. 390 of 1981, arising out of SC.C. suit No. 48 of 1980, is set aside.