JUDGMENT Anjani Kumar, J.
1. This writ petition was heard by this Court on 6.2.2004 and after hearing learned counsel for the parties, the same was allowed for the reasons to be recorded later on. Now here are the reasons for allowing the aforesaid writ petition.
2. The present revisionist who was defendant in the S.C.C. Suit No. 4 of 1993 was decreed ex parte on 15.7.1993. The defendant filed an application according to which when he acquired knowledge of the ex parte decree, he filed an application dated 27.5.1994 and deposited a sum of Rs. 48,126.64 as per requirement of proviso to Section 17(1) of Provincial Small Cause Courts Act, 1887. The trial court allowed the application under Order IX, Rule 13 of the Code of Civil Procedure filed by the defendant in Misc. Case No. 123 of 1994, decided on 31.10.1995 and the S.C.C. Suit No. 4 of 1993 was restored to its original number. The defendant preferred a written statement. The defendant therefore, in compliance of Section 20 (4) of the U. P. Act No. 13 of 1972 deposited a sum of Rs. 36,000 on 7.8.1996. The plaintiff amended the suit which was dismissed for default on 5.4.2002 and on an application filed by the plaintiff it was restored on 17.5.2002 with the direction that the defendant's counsel be informed and this order was passed on 30.5.2002 but the plaintiff has not done any pairvi and no information was given to the defendant's counsel. This suit was again dismissed on 4.7.2002. On 5.7.2002 the plaintiff filed an application under Order IX, Rule 4 of the Code of Civil Procedure which was accepted on 3.8.2002 on payment of cost of Rs. 300 which was directed to deposit in the Nazarat, Plaintiff, again did not pursue the matter till 4.9.2002 and refusal of the notice was found to be sufficient service. The trial court passed order for proceeding ex parte against the defendant though no notice was served on the defendant nor there was any endorsement that the defendant or its counsel refused to accept the notice. It has been argued before the trial court that the notice was sent by courier and received by wife of defendant which according to the findings recorded by the trial court is not sufficient service and also expressed its doubt of the courier notice and, therefore, the suit which was ex parte decreed on 11.11.2002 was found to be not in accordance with law and when the plaintiff proceeded with the execution and the whole proceeding came to the knowledge of the defendant, he along -with an affidavit filed an application under Section 17 of the Provincial Small Cause Courts Act, 1887 that they may be permitted to furnish security for sum of Rs. 1,03,200. The plaintiff file an objection 18Ga wherein apart from the main objection, it is stated that it had only dilatory tactics due to which suit could not be disposed of which is pending from the year, 1993. The trial court by the order impugned in the present revision has held that the defendant has not complied with the requirement of provision of Section 17(1) of the furnishing security, should not have been accepted because the security was in the form of movable property which should not have been accepted without registration. The trial court accepted the case of the plaintiff and rejected application. Thus, this revision.
3. Learned counsel for the defendant revisionist relied upon a decision in Suresh Chand v. VIIth Additional District Judge, Muzaffarnagar, AIR 1992 All 295, wherein it is laid down that if the security furnished in pursuance of the Section 17(1) of Provincial Small Cause Courts Act, 1887 for setting aside the ex parte decree relating to movable property, the registration of security is not necessary.
4. As against the aforesaid decision, learned counsel for the plaintiff-opposite party cited a decision in Kedarnath v. Mohan Lal Kesarwani and Ors., 2002 (1) AWC 502 (SC) : JT 2002 (1) SC 82, which says that proviso to Section 17(1) of Provincial Small Cause Courts Act, 1887 is mandatory and without its compliance the revision cannot succeed.
5. In this view of the matter, learned counsel for the respondent submitted that since the security should not have been accepted. There is fallacy in the argument of learned counsel for the respondent in view of the law laid down in the decision in Suresh Chand v. VIIth Additional District Judge, Muzaffarnagar and Ors., AIR 1992 All 295, which is in conformity of the decision in Kedarnath v. Mohan Lal Kesarwani and Ors.. 2002 (1) AWC 502 (SC) : JT 2002 (1) SC 82, that the applicant is required to furnish security as contemplated in the proviso to Section 17(1). This part is definitely mandatory and this part has been complied with by the revisionist. So far as the argument that the security should be subject to registration is concerned, is not correct. The bare reading of Section 17(1) clearly demonstrates that it requires the applicant to furnish the security. In view of the law laid by the decision in Suresh Chand v. VIIth Additional District Judge, Muzaffarnagar and Ors., AIR 1992 All 295, which is not contrary to the law laid down by the Apex Court in the decision in Kedarnath v. Mohan Lal Kesarwani and Ors., 2002 (1) AWC 502 (SC) : JT 2002 (1) SC 82, since the revisionist has already furnished security to the satisfaction of the court, the view of the court below in rejecting application for setting aside the ex parte decree suffers from manifest error of law and deserves to be quashed and is hereby quashed.
6. In the result, the revision deserves to be allowed and is allowed. The order dated 28.1.2004 is quashed. The trial court is directed to accept the security furnished by the revisionist and decide the application under Order IX, Rule 13 of the Code of Civil Procedure and the matter is remanded back to the trial court with the direction to decide the case expeditiously.