Decided on February 04,1938


Referred Judgements :-



- (1.)This is a revisional application against an order made by the Small Cause Court Judge of Ahmedabad. The facts are that on December 11, 1935, the plaintiff obtained a decree ex parte against the defendant for Rs. 126. The defendant applied to set aside the ex parte decree under Section 17 of the Provincial Small Cause Courts Act, 1887, and on that application the present opponent became a surety for the defendant. Subsequently, the ex parte decree was set aside, and the suit was re-heard and resulted again in a decree in favour of the plaintiff. The question is, whether the surety is liable for the amount for which the decree was ultimately given in favour of the plaintiff, or whether he is only liable for the amount under the original decree, which decree was set aside. The learned Judge held that as the ex parte decree was set aside, the surety was discharged.
(2.)Now, the suretyship bond was taken under the proviso to Section 17 of the Provincial Small Cause Courts Act. That section applies the procedure prescribed in the Code of Civil Procedure, 1908, to Small Cause Courts, but then it is provided that an applicant for an order to set aside a decree passed ex parte 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 security to the satisfaction of the Court for the performance of the decree or compliance with the judgment, as the Court may direct. So that when the defendant against whom an ex parte decree has been passed presents to the Court an application to set it aside, he must lodge in Court the decretal amount, or if he is not prepared to do that he must previously have obtained an order entitling him to give security instead of lodging the money in Court. But the proviso does not specify what the security is given for, nor does it provide when the money paid into Court is to be withdrawn. It is, I think, quite clear that the object of the proviso is to discourage frivolous applications to set aside ex parte decrees or to review judgments. One view is that the money is lodged, or the security given, for the payment of the money under the actual decree, assuming that it is not set aside, the result being to discourage the defendant from makingan application to get the decree set aside unless he is likely to succeed, at any rate, in that application. An alternative view is that the money is lodged, or the security given, to abide the ultimate result of the suit, the effect being to discourage the defendant from applying to set aside the decree, unless he has some substantial grounds on the merits. In my view, the language of the: proviso suggests the former view, since the reference at the end of the proviso to performance of the decree or compliance with the judgment seems to be: to an existing decree or judgment, and not to one to come into existence in the future. This view was adopted by Mr. Justice Sulaiman, as he then was, in Tulsi Misir v. Bindeshri Misir, AIR1936All593 , a case on which the learned Judge in the Court below relied. The actual bond passed by the surety in this case is almost unintelligible, but, in my opinion, if it bound the surety to anything beyond payment of the amount due on the ex parte decree, it was not in accordance with the statute. I think, therefore, that the learned Judge was right in holding the surety discharged, and the application must be dismissed with costs. But the learned Judges of the Provincial Small Cause Courts ought to see that a proper form of suretyship bond under the section is prepared.
Wassoodew, J.

(3.)I agree.

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