Allahabad High Court
Azmatulla Khan vs Ahmad Ali on 1 April, 1925
Equivalent citations: AIR1925ALL379
JUDGMENT Stuart, J.
1. The main point for decision in these two revisions is whether there has been substantial compliance with the provisions of Section 17 of Act IX of 1887. A decree had been passed by the Small Cause Court ex parte against Ahmad Ali for Rs. 483-9 and Rs. 56-11 costs. This decree was passed on the 6th September, 1924. On the 14th October, 1924 Ahmad Ali applied under Section 17 to set aside the ex parte decree and, at the time of presenting his application, filed a bond by which he hypothecated a house which he asserted was worth Rs. 4,000 as security for the performance of the decree but in this application he estimated the decretal amount at Rs. 530 instead of Rs. 540-4. The explanation which he gives for this error is that he had miscalculated the costs. He thus professed himself ready to give security for more than seven times the decretal amount, and actually had done so.
2. It was ordered that the security should be verified but before steps were taken by the Court to verify it. Ahmed Ali paid in cash into Court Rs. 540-4, the full decretal amount, as security. It is argued on behalf of the opposite side (the plaintiff's side) that Ahmad Ali did not comply with the provisions of Section 17. The leading case in this Court upon the point is Jagannath v. Chet Ram (1906) 28 All. 4770. Applying the principles laid down in that case, I consider that there has been substantial compliance with the provisions of Section 17. The applicant (the applicant for setting aside the ex parte decrees) was obliged to give full security. He gave full security. The circumstance that be made a genuine error, by which he stated the amount for which the security bad to be given at Rs. 10-4 less than it really was, does not affect the fact that he gave security for more than what was due. His action in depositing the amount in cash later can only be taken as part of the same transaction as had gone before and not as a belated attempt to file security at a date when be was not permitted to file it. By depositing the amount in cash he saved the trouble of further verification. In these circumstances the applications must fail. The application for restoring the ex parte decree fails. The application for setting aside the dismissal of the suit on merits has nothing to recommend it. I dismiss both applications with costs.