D. A. Desai, J. - (1.) Third respondent Smt. Savitri Devi filed a small causes case No. 43/76 in the Court of Civil Judge, Rampur- designated as Court of Small Causes for recovering arrears of rent, electricity charges etc. in respect of House No. 368 situated, in Adarsh Colony, Civil Line, Rampur against the present appellant. On service of the summons, the appellant appeared and contested the suit by filing his written statement. The suit came to be adjourned for hearing to August 6, 1977. On that day, the appellant and his advocate were absent and the suit was decreed ex parte. On Aug. 8, 1977, appellant appeared and moved an application under the proviso to See. 17 (1) of the Provincial Small Causes Act, 1887 ('Act' for short) requesting the Court to permit him to give such security for the performance of the decree in lieu of the liability to deposit in cash the amount due from him under the decree. On the same day, the Court granted him the permission subject to the condition that the appellant shall deposit Rs. 2700/- in cash and for the balance of decretal amount, he was directed to give an adequate security. Subsequently on Aug. 31, 1977, the applicant moved an application under Order 9, Rule 13 of the Civil P. C. requesting the Court to set aside the ex parte decree submitting that on Aug. 6, 1977 when the suit was called on for hearing, he was prevented by a sufficient cause from remaining present in person because he had suddenly taken ill and neither he could remain present nor could he inform his advocate about his illness. Simultaneously, he deposited Rs. 2700/- in cash as directed by the Court. On September 21, 1977, Munasarim of the Court reported that the security bond furnished by the appellant was not duly stamped nor was it drawn on an appropriate stamp paper. The court directed the appellant to furnish the requisite stamps within a week. In Compliance with this order, the appellant supplied requisite stamps for the bond on October 5, 1977. The decree-holder contested the application for setting aside the ex parte decree inter alia contending that there was non-compliance with the mandatory provision contained in the proviso to Section 17 (1) of the Act and therefore the application purporting to have been made under Order 9, Rule 13 for setting aside the ex parte decree was incomplete and was liable to be dismissed on this short ground. The trial Court held that the failure of the appellant to file surety bond duly stamped for the balance of the decretal amount as directed by the Court in its order dated August 8, 1977 on or before August 31, 1977, when the substantive application under Order 9, R. 13 was filed and the surety bond submitted by the appellant on a court-fee stamp of Rs. 2/- being not a legal document, there was non-compliance with the proviso to Section 17 (1), and therefore the application under Order 9, Rule 13 was liable to be dismissed. The application of the appellant was accordingly dismissed. After an unsuccessful revision petition to the District Court under Section 25 of the Act, the appellant moved a petition under Article 227 of the Constitution in the High Court of Judicature at Allahabad.
(2.) A learned single Judge of the High Court after noticing the conflict of opinion between the Madras and Calcutta High Courts preferred the view expressed by the Calcutta High Court that a surety bond as contemplated by the proviso to Section 17 (1) of the Act would be governed by the Stamp Act. Accordingly the learned judge held that as the appellant had failed to submit a valid surety bond duly stamped, within the period of limitation, the application under O. 9, Rule 13 was incomplete and ineffective and has been rightly dismissed by the Small Cause Court. Hence this appeal by special leave.
(3.) Section 17 of the Act may be extracted: "17. (1) The procedure prescribled in the Code of Civil procedure, 1908, shall save in so far as is otherwise provided by that 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 parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Courts 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. (2) Where a person has become liable as surety under the proviso to sub-sec. (1), the security may be realized in the manner provided by S. 145 of the Code of Civil Procedure, 1908." ;