Heard Sri Ashish Kumar Srivastava, learned counsel for the defendant revisionist. Sri Namit Srivastava has appeared for the respondents.
The revision has been preferred under Section 25 of the Provincial Small Causes Court Act, 1887 against the order dated 18.9.2014 passed by the Small Causes Court rejecting the application of the defendant revisionist paper no. 5 Ga in Misc. Case No. 40 of 2014 (Liyakat Vs. Mohd. Akran and others). The court below by the impugned order has refused to grant time to the defendant revisionist for furnishing security as required under Section 17 of the Act for setting aside decree passed ex-parte.
The submission of Sri Ashish Srivastava, learned counsel for the defendant revisionists is that along with an application for setting aside ex-parte decree purported to be filed under Order 9 Rule 13 CPC an application praying for time to furnish security under Section 17 of the Act was also filed which has been rejected on the ground that the defendant revisionist has not shown any reason for not depositing the amount decreed in cash.
Section 17 of the Act provides for following the procedure prescribed by CPC in proceedings before the Small Causes Courts save and subject to modifications as specified under the Act. Accordingly, a decree passed ex-parte can be set aside as contemplated under Order 9 Rule 13 CPC.
Section 17 of the Act however, provides that the applicant for setting aside the decree passed ex-parte shall at the time of presenting his application shall either deposit the amount decreed in Court or give security for the performance of the decree. Therefore, depositing of amount decreed or furnishing of security in lieu thereof has to be simultaneous with the filing of the application for setting aside the ex-parte decree. The furnishing of the security may also be according to the directions of the court given on the application previously for the purpose. It means, in case before filing of an application for setting aside ex-parte decree if any application is moved for furnishing security in that event the security shall be furnished as may be directed by the court on such application.
In the instant case the defendant revisionist has not deposited the amount decreed or furnished security while making an application for setting aside ex-parte decree. He has not even moved any application for depositing the security prior to filing of an application for setting aside the ex-parte decree.
In view of the aforesaid facts and circumstances as the defendant revisionist had not filed any previous application seeking time for furnishing security and has not deposited the amount decreed or furnished security while applying for setting aside the ex-parte decree, there is a clear default in complying with the provisions of Section 17 of the Act.
In view of the above, irrespective of the ground on which the application has been rejected, I find that the defendant/revisionist is not entitle to relief on his above application. Accordingly, the revision has no merit and it is accordingly dismissed.
Order Date :- 27.10.2014 SKS