- (1.) HEARD learned counsel for the petitioner. None appears for the private respondent.
(2.) THE plaintiff respondent No.2 filed suit before the Judge, Small Cause Court, Bahraich registered as Misc. Case No. 1/74/ 84. THE suit was decreed ex parte by order dated 4.8.1984. Feeling aggrieved, the petitioners defendants preferred a revision which has been dismissed by the impugned order, hence they preferred the present writ petition. Mr. U.S. Sahai, learned counsel appearing for the petitioners while assailing the impugned order submits that the suit was decreed for an amount of Rs. 1,680/-. Apart from the decretal amount, Rs.417.10 was mentioned as cost of the suit. The amount pendente lite and future damage is kept out of consideration. While preferring the revision, the petitioners have not deposited the entire decretal amount, i.e. Rs. 2097/-. It has been stated by the petitioners' counsel that the amount of Rs. 1,680/- was deposited. However, the cost of Rs.417.10 was not deposited. He further submits that the petitioners are ready to deposit the amount.
(3.) WHILE assailing the order, learned counsel for the petitioners submits that under Section 17 of the Provincial Small Causes Courts Act, 1887, in short Act, though there is a provision to deposit the decretal amount while moving an application for recall of the ex parte judgment and decree under Order 9, Rule 13 CPC but that is not mandatory and in case there is substantial compliance of Section 17 of the Act, then the application should not have been rejected only on the ground that the entire decretal amount has not been deposited. It has been submitted that the trial Court has allowed the application filed under Order 9, Rule 13 CPC keeping in view the insufficiency of service on the defendant. The submission is that once the trial Court has allowed the application filed under Order 9, Rule 13 CPC, the revisional Court should not have reversed the judgment of the trial Court. Section 17 of the Act provides that an application under Order 9, Rule 13 CPC for setting aside decree passed ex parte or for review of the judgment shall at the time of presenting the said application either deposit the amount due under the decree or in pursuance to the judgment or give such security for the performance of decree or for compliance of the judgment of the Court. It has been stated that the petitioner has deposited an amount of Rs. 1680/- only and the negligible amount of Rs.417.10 was not deposited.;