JUDGMENT Anjani Kumar, J.
1. This writ under Article 226 of the Constitution of India filed by the tenant-petitioner is directed against the order dated 19.3.2002, passed by the respondent No. 1 (Annexure-6 to the writ petition) in S.C.C Revision No. 59 of 1997 under the Provincial Small Cause Courts Act. 1887.
2. The facts giving rise to the filing of the present writ petition are that landlord filed a suit for eviction of the petitioner-tenant after service of notice under Section 106 of the Transfer of Property Act. 1882.
3. This suit was decreed ex pane on 19th September, 1995. The petitioner filed an application under Order IX. Rule 13 of Code of Civil Procedure. 1908, for setting aside the aforesaid ex parts decree.
4. Section 17 of Provincial Small Cause Courts Act. 1887. (hereinafter called the 'Act'), provides that the procedure prescribed in the Code of Civil Procedure, 1908 (5 of 1908), shall, save in so far as is otherwise provided by the Code or by this Act, be the procedure followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits.
5. The provision of aforesaid Sub-section (1) of Section 17 of the Act is reproduced below :
" 17. Application of the Code of Civil Procedure.-- (1) The procedure prescribed in the Code of Civil Procedure, 1908 (5 of 1908), shall save in so far as is otherwise provided by the Code or by this Act, be the procedure followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits :
Provided that an applicant for an order to set aside a decree passed ex parts 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 such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf have directed."
6. In this view of the matter, petitioner has filed an application on 24th October, 1996 [Annexure-4 to the petition) along with application under Order IX. Rule 13, Code of Civil Procedure. 1908, praying that he may be permitted to furnish security for the decretal amount.
7. From the order of the trial court dated 131h November. 1997, passed on the petitioner's application under Order IX. Rule 13, Code of Civil Procedure, 1908, it is clear that the petitioner's application for furnishing security, which was numbered as 8-Ga, was not accepted by the trial court and the Court directed the petitioner to deposit decretal amount in cash.
8. After filing of the aforesaid application and after passing the aforesaid direction to the petitioner to deposit the decretal amount in cash, petitioner moved an application which was numbered as 10-Ga that the amount of Rs. 14,865 has already been deposited, therefore, petitioner may be permitted to furnish security. No order was passed on the application. The trial court accepted the averments of the petitioner that he has complied with the order and ultimately allowed the application of the petitioner.
9. Aggrieved by the order, landlord preferred the Revision No. 59 of 1997. The argument advanced before the revisional court was that petitioner has not complied with the order under the provision of Subsection (1) of Section 17 of the Act, 1887. The trial court had passed the order on the petitioner's application No. 8-GA directing the petitioner-tenant to deposit the amount of decree in cash. Petitioner has failed to deposit the said amount. Petitioner has filed another application number 10-Ga on which no order was passed. In view of aforesaid circumstances, the revisional court held that since the petitioner has failed to comply with the requirement of Sub-section (1) of Section 17 of the Act and his application was wrongly entertained and deserves to be dismissed. The revisional court, therefore, set aside the order of the trial court.
10. Learned counsel of the petitioner Shri Shy am Narain has argued that since the trial court has already accepted the contention of the petitioner that amount of Rs. 14.865 has already been deposited, therefore, need not require to deposit any further amount.
11. In view of the decision of the Apex Court in Kedarnath v. Mohan Lal Kesarwani and Ors. 2002 (1) AWC 502 (SC) : 2002 (1) ARC, the Apex Court ruled as such :
"A bare reading of the provision shows that the Legislature have chosen to couch the language of the proviso in a mandatory form and we see no reason to interpret, construe and hold the nature of the proviso as directory. An application seeking to set aside an ex parte decree passed by a Court of Small Causes or for a review of its Judgment must be accompanied by a deposit in the Court of the amount due from the applicant under the decree or in pursuance of the judgment. The provision as to deposit can be dispensed with by the Court in its discretion subject to a previous application by the applicant seeking direction of the Court for leave to furnish security and the nature thereof. The proviso does not provide for the extent of time by which such application for dispensation may be filed. We think that it may be filed at any time up to the time of presentation of application for setting aside ex parte decree or for review and the Court may treat it as previous application. The obligation of the applicant is to move a previous application for dispensation. It is then for the Court to make a prompt order. The delay on the part of the Court in passing an appropriate order would not be held against the applicant because none can be made to suffer for the fault of the Court."
12. In view of the aforesaid decision of the Apex Court. petitioner's application No. 8-Ga was decided by the trial court and he was directed to deposit the amount in cash. There is no room for argument before the revisional court that decretal amount has already been deposited, and no further amount was required to be deposited. This contention deserves to be rejected and is hereby rejected. No other point was urged.
13. In my opinion, order passed by the revisional authority does not warrant any interference by this Court under Article 226 of the Constitution of India. The petition lacks merit and is accordingly dismissed. There will be no order as to costs.