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2016 DIGILAW 2402 (ALL)

ANGOORI DEVI v. ADDITIONAL DISTRICT JUDGE

2016-07-12

PANKAJ MITHAL

body2016
JUDGMENT Hon’ble Pankaj Mithal, J.—Heard Sri Nipun Singh, learned counsel for the petitioners. Sri Shamimul Hasnain, appears for the contesting respondent Nos. 3 and 5. 2. An ex parte decree for arrears of rent and eviction was passed against the petitioners on 22.1.2013 by the Judge Small Causes Court. 3. The petitioners applied on 23.7.2013 under Order IX Rule 13 C.P.C. for setting aside the aforesaid ex parte decree alongwith an application under Section 5 of the Indian Limitation Act, 1963. 4. The above applications remained pending and in between the petitioners on 6.11.2013 moved application 12Ga seeking permission to furnish security of the decretal amount. The said application has been rejected by the order dated 30.11.2013 and the revision against the same has been dismissed on 26.5.2016. These two orders have been impugned by the petitioner by moving this petition under Article 227 of the Constitution of India. 5. The submission of Sri Nipun Singh, learned counsel for the petitioners is that since the application filed by the petitioners under Order IX Rule 13 C.P.C. was not in time and was accompanied by a delay condonation application, therefore, until and unless delay in its filing is condoned its presentation would not be proper. Since so far delay had not been condoned there was no presentation of application under Order IX Rule 13 C.P.C. and as such the Courts below could have permitted him to furnish security treating it be an application prior to the presentation of application under Order IX Rule 13 C.P.C. 6. Section 17 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the Act) provides for the applicability of the provisions of C.P.C. to proceedings before the Small Causes Court and lays down that where an application is moved to set aside ex parte decree, the applicant shall, at the time of presenting the application either deposit in the Court, the amount due from him under the decree or give security for the performance of the decree as the Court may, on a previous application made by him on this behalf may direct. 7. Section 17 of the Act is reproduced hereinbelow : “17. 7. Section 17 of the Act is reproduced hereinbelow : “17. Application of the Code of Civil Procedure—(1) The procedure prescribed in the Code of Civil Procedure, 1908 (5 of 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 judgement 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 judgement, or give such security for the performance of the decree or compliance with the judgement as the Court may, on a previous application made by him in this behalf, have directed. Where a person has become liable as surety under the proviso to sub-section (1), the security may be realised in manner provided by Section 145 of the Code of Civil Procedure, [1908] (5 of 1908).” 8. A plain reading of the aforesaid provision demonstrates that at the time of presentation of an application for setting aside ex parte decree, the applicant has to satisfy either of the two conditions of depositing the amount due under the decree or to give security for the performance of the decree as the Court may direct on a previous application made by him in that regard. 9. The second condition is qualified and to avail it the party has to move an application for furnishing security prior to the application for setting aside ex parte decree. 10. The Supreme Court in Kedarnath v. Mohan Lal Kesarwari, (2002) 2 SCC 16 , held that application seeking to set aside an ex parte decree passed by the Court of small causes must be accompanied by deposit in Court of the amount due from the applicant under the decree and the provision regarding deposit shall only be dispensed with by the Court in its discretion subject to moving an application seeking direction or the leave of the Court to furnish security, prior to the presentation of the aforesaid application. 11. 11. The Supreme Court further observed that such an application may be filed at any time prior to the time of presentation of the application for setting aside ex parte decree. The obligation is to move a previous application for dispensation of deposit. 12. The aforesaid decision of the Supreme Court clearly spells out that the mandatory requirement of deposit of the decretal amount can only be dispensed with by the Court provided an application in that regard is moved by the applicant before the presentation of application under Order IX Rule 13 C.P.C. 13. In view of the above decision of the Supreme Court there is hardly any scope for entertaining an application to grant leave from the deposit of the amount decreed and to furnish security in lieu thereof subsequent to the presentation of an application under Order IX Rule 13 C.P.C. 14. The two phrases “at the time of presenting his application” and “on a previous application made by him in this behalf “used in Section 17 of the Act” are relevant and important. 15. The phrase “on a previous application made by him in this behalf” connotes moving of an application prior to filing of the application for setting aside ex parte decree and it is hardly material if the application presented is beyond time or is otherwise defective. The phrase “at the time of presenting his application” in this regard is crucial and refers to filing of an application whether defective or proper. 16. The contention that there is no presentation of any application under Order IX Rule 13 C.P.C. till the delay in its filing is condoned is of no substance. The reason is simple. As soon as the delay in its filing is condoned, the application would be treated to be within time and would relate back to a date much prior to its presentation which in the present case would be earlier to 23.7.2013 when the application under Order IX Rule 13 C.P.C. was actually filed. The application for exempting deposit of the amount decreed and for grant of leave to furnish security was filed on 6.11.2013. Thus, this application in any case is subsequent to the application for setting aside ex parte decree and not an application previous to the application for setting aside ex parte decree. 17. The application for exempting deposit of the amount decreed and for grant of leave to furnish security was filed on 6.11.2013. Thus, this application in any case is subsequent to the application for setting aside ex parte decree and not an application previous to the application for setting aside ex parte decree. 17. In view of the aforesaid facts and circumstances, there is no error or illegality on part of the Courts below in rejecting the application of the petitioners to grant leave for furnishing security in place of depositing the decretal amount. 18. The petition as such is devoid of merit and is dismissed.