- (1.) Heard Mr. Ram Lagan Mishra, learned Counsel for the petitioner and Mr. Sharad Pathak, learned Counsel for the respondent Nos. 3 to 5. By means of this writ petition, the petitioner has challenged the judgment and order dated 31.1.2012, passed by the District Judge, Sultanpur and judgment and order dated 5.2.2011 and 27.2.2008, passed by Civil Judge (Senior Division), Sultanpur.
(2.) The facts of the present case are that the Small Cause Court proceeded to pass judgment and decree on 27.2.2008 against the petitioner. On the basis of the said judgment, the respondent/plaintiff also proceeded for execution of order. The petitioner moved an application under Order IX, Rule 13 read with section 151 C.P.C. and section 17 of the Small Cause Courts Act with the submission that he heard about the said judgment and decree by some persons, who were told by the respondent at first time only on 27th March, 2009. He immediately rushed to his Counsel, who enquired and found that one Execution Case No. 1 of 2008 has been filed against the petitioner, then on the same very date his Counsel put in appearance in the said case and asked time to file objection in the execution proceedings in which the Court fixed next date on 10.4.2009. On 30th March, 2009 his Counsel inspected the record and came to know that some order has been passed on 27.2.2008 against the petitioner.
(3.) However, the petitioner's application has been rejected by the Trial Court on the ground that he failed to comply with the provisions of section 17 of the Small Cause Courts Act which is mandatory. It is stated that the petitioner moved an application under section 17 of the Act on 13.8.2009 and also an application offering the amount of rent which was accepted by the Court below. In furtherance of which he also submitted the tender on the same very date which was accepted. It is not in dispute that he could not deposit the amount on that date. He deposited the amount only on 25.9.2009 i.e., after more than one month.;