R.B. Mehrotra, J. - (1.) A small causes suit has been filed by the present Respondents No. 3 to 7, who are admittedly the landlords of the premises in dispute against the Petitioners, who are admittedly the tenants. For convenience, the Respondents are hereinafter described as 'Plaintiffs' and the Petitioners are hereinafter described as 'Defendants'. The suit was filed for the relief of a decree for ejectment of the Defendants from the premises in dispute and also for rent and mesne profits alongwith water -tax.
(2.) THE Plaintiffs obtained an exparte decree against the Defendants on 30 -3 -87. The Defendants claim that they came to know of the said exparte decree on 5 -5 -87 and immediately on the next day i.e. on 6 -5 -87 they moved an application, supported by an affidavit, wherein, the' Defendants stated that they had no knowledge of the said suit, as the Defendants were never served with any summons and the said exparte decree has been obtained without service of any summons on the Defendants. On 14 -5 -87. the Defendants moved an application for complying with the proviso of Section 17 of the Provincial Small Causes Court Act (hereinafter referred to as 'the Act'). In this application, the Defendants stated that a money -order has been sent of Rs. 975/ - towards rent of the house, which has been received by the Plaintiffs during the course of the suit. As such, the Defendants should be permitted only to execute a personal bond for compliance of proviso to Section 17 of the Act. Alongwith application, a photostat copy of the original receipt of the money -order for Rs. 975/ -, showing receipt of the aforesaid amount by the Plaintiffs on 21 -4 -86, was filed. The trial court, vide its order dated 14 -5 -87, permitted the Defendants to deposit half of the decretal amount in cash and security for half of the decretal amount by 10 -7 -87. However, before the aforesaid date i.e. 10 -7 -87, the Defendants moved an application on 26 -5 -87 that the Plaintiffs' suit has been decreed exparte on 30 -3 -87, wherein the Plaintiffs had admitted the receipt of a sum of Rs. 975/ - from the Defendants on account of rent and mesne profits during the pendency of the case but the said amount has not been adjusted in preparing the exparte decree. As such, the exparte decree, may be amended suo -moto. In the aforesaid background on 10 -7 -87, the Defendants moved another application, saying that so far as the rent is concerned, the Defendants have paid the rent but the exact amount of the decree is not being ascertained. The original record may be summoned, so that the Defendants may deposit the full amount. On the said application, the court directed the original file to be summoned, fixing 23 -7 -87. On 23 -7 -87 the court granted one week's time for complying with the court's order dated 14 -5 -87. On 30 -7 -87 an application was moved on behalf of the Defendants, seeking one month's time for depositing the decretal amount on the ground that the Defendant Masih Das had fallen ill on the said date. The application was allowed and 15 days' time was granted to the Defendants for complying with the court's order dated 14 5 -87. On 4 -8 -87 the Defendants deposited a sum of Rs. 590.25 paise in cash and furnished security for a sum of Rs. 590.25 paise, which was duly accepted by the trial court. The trial court issued notice on Defendants' application under Order 9 Rule 13 of Code of Civil Procedure to the Plaintiffs and also stayed further proceedings in execution case for ejectment of the Defendants. The Defendants claim that the notice was issued to the Plaintiffs, after the trial court was satisfied that proviso of Section 17 of the Act has been complied with. The Plaintiffs contested the said application on the ground that the Defendants' application, under Order 9 Rule 13 of Code of Civil Procedure is barred by time. It was also contended that the summons were duly served on the Defendants and there is no justification for setting aside the exparte decree.
(3.) FOR completing the narration of facts, two facts may also be noticed, that the Defendants' application dated 26 -5 -87 for correction of the decree due to the error of the court was ultimately allowed some time in July 1988 and the deeree was corrected on 22 -8 -88, and an application was moved on 13 -5 -88 on behalf of the Defendants for condonation of delay in depositing the balance of decretal amount if any, and a sum of Rs. 186/ -was deposited with the stipulation that if any amount is found short on the basis of the correction of the decree, the said amount may be permitted to be deposited -;