Patna High Court
Ram Charitar Ram vs Hashim Khan on 11 May, 1920
Equivalent citations: 56IND. CAS.810, AIR 1920 PATNA 111(2)
JUDGMENT Das, J.
1. This application is directed against an order of the learned Judge of the Small Cause Court refusing to restore a Small Cause Court suit under Order IX, rule 13 of the Code of Civil Procedure. It appears that the suit was decreed ex parte in favour of the plaintiffs on the 16th September last. On the 19th September the defendant applied under Order IX, rule 13, for setting aside the ex parte decree and for re-hearing of the original suit, but the applicant did not deposit into Court the amount due from him under the decree or give security to the satisfaction of the Court for the performance of the decree which was pasted against him. The Court, however, gave him time to furnish the security bond on or before the 13th of November and the applicant did furnish a security bond within the time allowed to him by the Court. When the application ultimately same on for hearing, the plaintiffs who had succeeded before the learned Judge argued that inasmuch as at the time of presenting his application the applicant did not deposit into Court the amount due from him under the decree or give security to the satisfaction of the Court for the performance of the decree, the application could not be heard. The learned Judge agreeing with this contention has rejected the appellant's application. In my view, the learned Judge has taken an entirely correct view of the law on the subject. Section 17 gives a right to apply for an order to set aside a decree passed ex parte, but it imposes certain conditions on the defendant. Those conditions will be found in Section 17 of the Provincial Small Cause Courts Act which runs 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." It seems to me that this section is mandatory. It is impossible to read this section in any other way. Obviously the Legislature intended to discourage, so for as was possible, applications for setting aside ex parte decrees in respect of Small Cause Court suits. The Calcutta High Court has consistently taken the view that this section is mandatory, but it appears that under the latest case the Calcutta High Court has taken the view that it is not necessary that the security bond should be filed along with the application. It is sufficient according to this decision if the security bond is furnished within the time limited for making an application under Order IX, rule 13. It is, in my view, unnecessary to decide whether the security bond should be filed along with the application or not, because in any view of the case the security bond was in fast furnished long beyond the time allowed under the law for making an application under Order IX, rule 13.
2. The learned Vakil, however, argues that the Code of Civil Procedure now gives an express power to the Court for extending time and that consequently the Court had power to extend the time and did in fact exercise that power and that consequently the Court ought not to have rejected the application. In my view, this argument is not sound. Section 148 provides that "where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by the Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired." It is obvious that Section 148 has no application to the facts of this case, because the doing of the act, namely, furnishing the security bond, is prescribed not by the Code of Civil Procedure but by the Provincial Small Cause Courts Act. I would accordingly reject this application with costs. Hearing fee one gold mohur.