Dilip Gupta, J. - (1.) THIS petition seeks the quashing of the order dated 11th August, 2010 passed in SCC Misc. Case No.86 of 2005 arising out of SCC Suit No.19 of 2003 by which the application filed by the defendants under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex -parte decree dated 8th February, 2005 in SCC Suit No.19 of 2003, was rejected. The petitioners have also sought the quashing of the order dated 30th April, 2011 by which the Revision filed by the petitioners under Section of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the 'Act') for setting aside the aforesaid order dated 11th August, 2010 has been rejected.
(2.) SCC Suit No.19 of 2003 had been filed by the respondent -landlord for decree of eviction and for payment of arrears of rent. The suit was decreed ex -parte on 8th February, 2005. The petitioners filed an application under Order IX Rule 13 read with Section of the Code of Civil Procedure together with an application under Section of the Limitation Act on 17th May, 2005 for setting aside the ex -parte decree. This application was rejected by the Court on 11th August, 2010 on the ground that the provisions of Section of the Act had not been complied with. The Revision filed by the petitioners for setting aside the aforesaid order has also been rejected. The order dated 11th August, 2010 mentions that an application had been filed by the petitioners under Section of the Act for giving permission to give security for performance of the decree but this application was rejected by the order dated 4th January, 2008 by the Court for the reason that it had been filed subsequent to the filing of the application under Order IX Rule 13 of the Code of Civil Procedure. This order dated 4th January, 2008 attained finality as it was not assailed before any higher court. Consequently the application filed by the petitioners under Order IX Rule 13 of the Code of Civil Procedure was rejected by the order dated 11th August, 2010 as compliance of provisions of Section of the Act had not been made. The Revision filed by the petitioners has also been rejected on this ground.
(3.) LEARNED counsel for the petitioners submitted that the impugned order deserves to be set aside for the reason that when the application filed by the petitioners for deposit of security was rejected, time should have been given to the petitioners to deposit the said amount.;