Gopal Chandra Ghosal v. Chattu Roy — 1993 DIGILAW 43 (CAL)

JUDGMENT 1. A very short and important question that arises for decision in this application under Section 25 of the Provincial small Cause Courts Act (hereinafter referred to as "the application") is whether the Court can extend the time to furnish security or condone the delay in furnishing such security in view of proviso to section 17 (1) of the provincial Small Cause Courts Act, 1)887 (hereinafter referred to as the act"). 2. THE facts leading to filing of the application are as follows : the Decree-holder/opposite Party instituted a suit before the Judge, small Cause Court at Sealdah for realisation of money against the judgment debtor/petitioner. The said suit was decreed ex parte on 17th of August, 1987. On 8th of January, 1988 the petitioner made an application for setting aside the ex parte decree under Order 9 rule 13 of the Code of Civil procedure and on the same date filed another application for furnishing security for the performance of the decree or compliance with the ex parte judgment and decree (hereinafter referred to as the "application for security"). By an order, being Order No. 6 dated 12th of January, 1988, the petitioner was directed to furnish security by 28th of January, 1988. On 28th of January, 1988 the petitioner could not furnish the security but/ prayed for time to furnish such security, the Court granted time and fixed 23rd February, 1988 as the date for furnishing the said security. On 23rd of February, 1988 an application was filed by the petitioner for extension of time but the said application was rejected. Thereafter, on 22nd March, 1988 the petitioner made an application praying that the laches if there he any on the part of the petitioner may be condoned and the petitioner be given an opportunity to furnish the said Security. This application was opposed by the decree-holder/opposite party. By the impugned order being Order no. 11 dated 7th of April 1988, Sri D. K. Basu learned Judge, Small causes Court at Sealdah rejected the said application inter alia holding that as the judgment debtor did not furnish any security within the statutory period, prayer of the judgment debtor/petitioner for extension of time for furnishing scurity on condonation of delay could not be allowed against this order the judgment debtor/ petitioner has come to this Court under Section 25 of the Act. I have heard Mr. I have heard Mr. Banerjee, appearing on behalf of the decree-holder/ opposite parry. I have perused the impugned order. I have also considered the maerials on record. After perusing the impugned order and the materials on record and on consideration of the submissions made by Mr. Banerjee, appearing on behalf of the view that the learned judge has acted illegally and with material irregularity in the exercise of his jurisdiction in rejecting the prayer of the petitioner for extension of time or to condone the delay in furnishing the security in terms of proviso to Section 17 (1) of the act, 3. Mr. Banerjee, appearing on behalf of the opposite party, submitted that in view of the proviso to section 17 (1) of the act, which is mandatory in nature, the Court has no Jurisdiction to extend the time to furnish the security or to condone the delay in furnishing such security. Mr. Banerjee further submitted that if an applicant makes an application for furnishing security in compliance with the judgment and decree and has been successful in getting an order for security, he can furnish such security which the Court might have previously directed, but it is no longer open to the Small Cause Courts to extend time within which the deposit is to be made or security is to be furnished. According to Mr. Banerjee, as the provision is mandatory, the Court cannot extend the time or condone the delay in furnishing the security. In support of his submission, Mr. Banerjee relied on the decisions reported tin AIR 1953 Allahabad 758 (Jagadish prasad A Ors us Mahodeo), AIR 1976 Calcutta 52 (Samsuddin Mia us munsi adal Alan and Anr) and 24 CWN 380 (Abdul Sheikh us Mohammad Ayub) 4. I have carefully considered the submissions so made by Mr. Banerjee. After giving my serious consideration to the submissions of Mr. Banerjee, I am unable to agree with him that the Court becomes power-less to extend the time to furnish security or to condone the delay in furnishing such security or to condone the delay in furnishing such security in appropriate cases. In order to deal with the submissions of Mr. Banerjee, it would be necessary to quote Section 17 (1) of the act with its proviso. In order to deal with the submissions of Mr. Banerjee, it would be necessary to quote Section 17 (1) of the act with its proviso. Section 17 (1) of the Act reads as follows: 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 are view 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) A perusal of section 17 (1) of the Act would clearly show that the procedure prescribed in the Code of Civil Procedure shall be the procedure to be followed in Court of Small Causes in all suits cognizable by Small cause Courts and in all proceedings arising out of such suits except where it is otherwise provided in the Code of Civil Procedure or by Small Cause courts Act. Again on a plain reading of the proviso to Section 17 (1) of the act it appears to me that for an order to set aside a decree passed ex parte, the judgment- debtor shall, at the time of presenting his application, either deposit in Court the amount due from him under the decree or give security for the performance of the decree or compliance with the judgment as the Court may have directed on a previous application made by him in this behalf. Therefore, the proviso to Section 17 (1) of the act would only show that it is incumbent on a party for having an ex parte decree set aside either to deposit the decretal amount at the time of presenting the application for setting aside the decree or to furnish security as directed by the Court upon a previous application made for that purpose. Now the question is whether the Small Causes Court has power or jurisdiction to extend the time or to condone the delay to give security for the performance of the decree or compliance with the decree when on a previous application made by the judgment-debtor in this behalf the Court had directed the judgment-debtor to furnish security within the time specified therein. In this case, there is no dispute that at the time of filing the application for setting aside the ex parte decree, the petitioner had made an application to give security for the performance of the decree or compliance with the judgment. It is also not in dispute that on an application, the court granted time first upto 28th of January, 1988 and then extended the time till 23rd of February, 1988. Therefore, in this case admittedly time was extended by the court on the prayer of the petitioner till 23rd of February, 1988. As noted earlier in my view the requirement of proviso to Section 17 (1) of the act is that an applicant applying for an order to set aside the ex parte decree must, at the time of presenting the application do one or two things viz. either deposit in court was amount due under the decree or give such security for performance of the decree as the Court may have directed on a previous application made by him in this behalf. Therefore, in my view on a fair interpretation of the proviso to Section 17 (1) of the act, it appears that compliance of the proviso to Section 17 (1) of the Act is mandatory only to the extent that unless compliance of proviso to Section 17 (1) of the act is made the ex parte decree cannot be set aside. It is admitted that the petitioner did not furnish such security for performance of the decree although the Court directed the petitioner to do so on a previous application made by him in this behalf. It is admitted that the petitioner did not furnish such security for performance of the decree although the Court directed the petitioner to do so on a previous application made by him in this behalf. Now the question is whether the court loses its jurisdiction to condone the delay in furnishing the security or to extend the time to furnish such security in view of proviso to Section 17 (1) of the Act In my view, the court retains its jurisdiction either to extend the time or to condone the delay in furnishing the security because Section 5 of the limitation Act 1963 must be made applicable to an application filed under the proviso to Section 17 (1) of the Act. As observed hereinabove, proviso to Section 17 (1) off the act, in my view, only says that an applicant, for an order to set aside an ex parte decree, shall, at the time of presenting the application, either deposit in court the amount due from him under the decree or give security to the satisfaction of the Court for the performance of the decree as the Court directs. After perusing proviso to Section 17 (1) of the act it would be evident that nowhere it says that Section 5 of the Limitation Act 1963 would not be applicable to an application for extension of time and to condone the delay in furnishing security in terms of that provision. 5. LET me now consider whether Section 5 of the Limitation Act is applicable to an application filed for extension of time and/or for condonation of delay to furnish security in terms of proviso to Section 17 (1) of the Act. For this it would be necessary to refer to Section 5 of the limitation Act, 1908. Section 5 of the Limitation Act of 1908 runs as follows : 5. Extension of period in certain cases Any appeal or application for a review of judgment or for leave to appeal or any other application to which this section may be made apliable by or under any enactment for the time being in force may be admitted after period of limitation prescribed there for, when the appellant or applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period." 6. ON a plain reading of Section 5 of the Limitation act, as it stood in 1908, it is evident that this section was applicable on its own force to the two categories of applications, viz. review of judgment or leave to appeal. It was, however, applicable to any other application only if it was made applicable by any other enactment. Section 5 of the Limitation Act, 1908 was not made applicable to an application under Order 9 Rule 13 of the code of Civil Procedure or to an application filed under the proviso to section 17 (1) of the act. But the Limitation Act, 1963 provides as follows : 5. Extension of prescribed period in certain cases any appeal or any application other than an application under any of the provisions of order XXI of the Code of Civil procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. In my view unlike Section 5 of the Limitation Act, 1908 which covered only applications for review of judgments or for leave to appeal or applications to which the Section was made expressly applicable by the act, Section 5 of the Limitation Act, 1963 of its own force applies to all applications except those under Order XXI of the Code of Civil Procedure. It is, therefore, no longer necessary to apply Section 5 of the Limitation Act to any enactment before its provisions are attracted. 7. THE Supreme Court, in AIR 1977 SC 282 The Kerala State Electricity board, Trivandrum vs T. P. kinhalmma), while dealing with a case under article 137 of the Limitation Act, 1963 observed that Article 137 of the limitation Act, 1963 applies to any petition or application filed under any act to a Civil Court. In paragraph 22 at page 286 of the said decision the supreme Court has observed as follows : 22. The conclusion we reach is that Article 137 of the 1963 limitation Act will apply to any petition or application filed under any Act to a Civil Court. In paragraph 22 at page 286 of the said decision the supreme Court has observed as follows : 22. The conclusion we reach is that Article 137 of the 1963 limitation Act will apply to any petition or application filed under any Act to a Civil Court. With respect we differ from the view taken by the two judge Bench of this court in Athani Municipal Council case (AIR 1969 SC 137) (supra) and hold that Article 137 of the 1963 limitation act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a court the petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 limitation Act. (Emphasis added) 8. IT is not disputed that the Provincial Small Cause Court is also a civil court. That being the position, it must be held that Section 5 of the limitation Act, 1963 is applicable to an application filed under the Proviso to Section 17 (1) of the Act. Apart from what has been observed hereinabove, I must at this stage, take into consideration Section 29 (2) of the Limitation Act, 1963. It is not disputed that the Provincial Small Cause courts Act is a special law. Section 29 (2) of the Limitation Act, 1963 clearly lays down that even in cases of special or local law, the provisions contained in Sections 4 to 24 (inclusive) of the Limitation Act, 1963 shall apply only in so far as and to the extent to which they are not expressly excluded by such special or local law. After considering all the provisions of the Act, it does not appear that in any of the provisions of the Act Section 5 of the Limitation Act, 1963 has either been expressly included or excluded. It is also not found from the Scheme and object of the act that section 5 of the Limitation Act 1963 has been excluded by necessary implication. It is also not found from the Scheme and object of the act that section 5 of the Limitation Act 1963 has been excluded by necessary implication. Therefore, there is no doubt in my mind that in view of Section 29 (2) of the Limitation Act 1963, Section 5 of the Limitation Act 1963 is also applicable to an application filed for condensation of delay to furnish security under the proviso to Section 17 (1) of the act It is reiterated that section 5 of the Limitation Act 1908 was not made applicable in the case of a special or local law but after coming into force of the 1963 act a significant change has been made by introducing Section 29 (2) of the limitation Act, 1963. As noted earlier Section 29 (2) of the Limitation Act, 1963 lays down that Section 5 of the Limitation Act, 1963 would apply in the case of a special or local law unless is application is expressly excluded by such special or local law. therefore, (the result is that while under the limitation Act, 1908, the Court would have been incapable of extending the period of limitation, but by taking recourse to Section 5 of the limitation Act, 1963, the position now would be totally different and the period of limitation can now be extended by the small Cause Court in an appropriate case. At this stage. it would be necessary to refer to the decisions relied on by Mr. Banerjee appearing on behalf of the opposite party. The first decision on which Mr. Banerjee relied is a decision of the Allahabad High court, reported in AIR 1953 Allahabad 758 (Jagadish Prasad and ors -vs- Mahadeo). This was delivered at a time when the Limitation Act, 1963 was not brought into force and as such I am of the view this decision is of no help to the opposite party. In the decision reported in 24 CWN 380 (Abdul sheikh -vs- Mohammad Ayub), on which Mr. Banerjee also relied, a doubt was raised by a Division Bench of this court as to whether Section 5 of the limitation Act, 1908 applied to a case Med under Section 17 of the Act while raising such doubts Their Lordships observed at page 382 as follows: ". . . . . . . . Banerjee also relied, a doubt was raised by a Division Bench of this court as to whether Section 5 of the limitation Act, 1908 applied to a case Med under Section 17 of the Act while raising such doubts Their Lordships observed at page 382 as follows: ". . . . . . . . The learned Judge has said that in his opinion section 5 of the limitation Act applies to this case, and applying sec, 5 he has extended the period for making the application for review up to the 5th of July, the date upon which the amount of costs was deposited. I think it is doubtful whether sec. 5 of the Limitation Act applies to this case at all because it seems to me that the application for review was made within time, and consequently it may be urged that sec. 5 does not apply at all but assuming for the sake of argument that sec. 5 does apply, then it is incumbent upon the Plaintiff to show that he had sufficient cause for not making the application within the time specified. I fail to understand on what ground it can be said that the Plaintiff has sufficient cause for not making his application not only within the proper time but in the proper manner by depositing the amount of costs or giving security for the same at the time of making the application. The learned Judge seems to have thought that the plaintiff may have been misled by the orders of the court So for as I understand the dates there was no order of the court made until after the period within which the application should have been made and in a proper manner in accordance with the provisions of sec 17 of the Provincial Small Cause Courts Act" 9. FROM the aforesaid observation of the Division Bench if this Court it 834 Gopal Chandra Ghosal vs Chattu Roy CWN 98 appears that although a doubt was raised as to whether section 5 of the limitation Act, 1908 could be applied to an application under section 17 (1) of the act but at the same time, their Lordships went into the merits for causing in filing the application and on such consideration came to a finding that the explanation given was wrongly accepted by the Small cause Court Judge. Therefore, from this decision, we cannot safely hold that Section 5 of the Limitation Act, 1908 was not at all applicable to an application under section 17 (1) of the act although this was the view of the allahabad High court in AIR 1953 Allahabad 758 (Jagadish Prasad and Ors -vs- Mahadeo ). On the contrary the aforesaid Division Bench of this Court applied Section 5 of the Limitation Act, 1908 and held that explanation given for condensation of delay was not acceptable. The last decision on which Mr. Banerjee relied is a Single Bench decision of this court reported in AIR 1976 Calcutta 52 (Samsuddin Mia -vs- Munsi Adal Alim and Anr ). After carefully going through the decision, ] do not find any reason to hold that the said decision has any manner of application in the facts and circumstances of this case. In that decision, the question before the learned Single Judge of this Court was whether the Court could accept an application for setting aside ex parte decree without any security being furnished by the defendant according to the order or specifications given by the court previous to presentation of such application. In that context, it was held that in the proviso to Section 17 (1) of the act, it has not been stated that an application for furnishing security should be in writing. In paragraph 54 of the said decision, the learned Single Judge of this Court observed that in order to satisfy itself in the matter of compliance of the direction as to the deposit of the decretal amount or to furnish security the court is to see that there is substantial compliance of the proviso to section 17 (1) of the Act. Therefore this decision cannot come to an aid to the opposite party as in the case in hand we are concerned as to whether an application for condonation of delay or for extension of time in furnishing security under the Proviso to Section 17 (1) of the act can be made by applying Section 5 of the Limitation Act, 1963. Therefore this decision cannot come to an aid to the opposite party as in the case in hand we are concerned as to whether an application for condonation of delay or for extension of time in furnishing security under the Proviso to Section 17 (1) of the act can be made by applying Section 5 of the Limitation Act, 1963. In a recent decision of the Supreme Court reported in AIR 1983 SC 954 (Bhagwan dass Arora -vs- First Additional District Judge, Rampur and Ors delivered on section 17 (1) of the act, it has been observed that in appropriate cases, the court can exercise its power to do justice between the parties. The Supreme Court in that decision farther observed that the Court in that decision further observed that the Court is to see that if such power is exercised, that will meet the ends of justice. 10. FOR the reasons aforesaid, the impugned order is set aside and I hold that the Small Case Court has the power or jurisdiction to extend the time to furnish security or to condone the delay in furnishing such security in terms of proviso Section 17 (1) of the act. Accordingly, the impugned order is set aside. The learned judge is directed to consider and dispose of the application filed by the petitioner for extension of time or for condonation of delay in furnishing security within two months from the date of communication of this order after giving hearing to the parties and after passing a reasoned order in accordance with law. The revisional application is thus allowed to the extent indicated above. There will be no ors as to cost. Application allowed in part.