Patna High Court
Bishun Dayal Thakur vs Sheo Tahal Sahu on 26 May, 1921
Equivalent citations: 62IND. CAS.108
JUDGMENT Ross, J.
1. On the 11th of September 1920 the opposite party applied for setting aside an ex parte decree in a Small Cause Court suit and with his application filed what purported to be a security bond. This document was neither (tamped properly nor registered. The Small Cause Court Judge ordered that it be sent, to the Nazir to test the sufficiency of the security and on receipt of the Nazir's report wrote the word "accepted" on the application. When the case came on for trial the Small Cause Court Judge held that the bond was inoperative, but as it had been accepted by his predecessor in-office he could not reject it, but he ordered the petitioner to furnish legal security. A properly registered bond was (sic)quently filed and the application was heard and granted.
2. The petitioner contends that the provisions of Section 17 of the Small Cause Courts Act are mandatory and that inasmuch as the application was not accompanied by the required security, there was no proper application and the Court had no jurisdiction to pass the order setting aside the ex parte decree. It has always been held that Section 17 of the Small Cause Courts Act is mandatory Jogi Ahir v. Biahen Dayal Singh 18 C. 83 : 9 Ind. Dec. (N.S.) 56 and it is a condition precedent to the granting of a new trial that the applicant should, at the time of presenting his application, tender security. Now the bond which was originally filed was not a security bond and the bond which was ultimately accepted by the Small Came Court Judge was a different bond executed and filed out of time. The petitioner relies on the decision in Tarapada Ghose v. Jagat Mohini Dasi 42 Ind. Cas. 751 : 26 C.L.J. 315. That case is precisely on all fours with the present, except that the fresh security was not filed until after the application had been beard and disposed of.
3. On behalf of the opposite party it is argued that the Small Cause Court Judge had accepted the original security bond and he should not suffer for the mistake of the Court. In the case above referred to the invalid security was also accepted and the document approved of by the Court, but that made no difference to the result.
4. Then it was contended that he might have got the bond registered after its defects had been pointed out and that he only filed a fresh security bond because he was ordered by the Court to do so. It appears doubtful whether the original bond could have been registered on that date, which was more than four months from the date of execution, but that question does not arise, because in fact the original bond never was registered and is no security at all. The Court in giving the opposite party an opportunity to file a fresh bond was making an order in his favour, but in doing so the Court exceeded its powers and the order cannot assist the opposite party. It was held in Ram Charitar Ram v. Hashim Khan 66 Ind. Cas. 810 : (1920) Pat. 203 : 1 P.L.T. 323 that the Court has no power to grant time for furnishing security.
5. I must, therefore, hold that the application was not a good application and that the Court had no jurisdiction to order a re-trial of this suit. The application is allowed with costs and the order of the Small Cause Court is set aside. Hearing fee one gold mohur.