S.C.Mathur, J. - (1.) THE short question arising for determination in this Civil Revision filed under section 25 of the Provincial Small Cause Courts Act, 1887 (Act for short) is whether the applicant had complied with the requirements of the proviso to Section 17 (1) of the Act so as to entitle him to have the ex-parte decree passed against him set aside and to have the suit restored to its original number. A few facts relevant for determining the question may be noticed.
(2.) THE applicant is defendant in a suit filed by the opposite party for recovery of arrears of rent and damages for use and occupation and for possession over the premises in dispute. THE suit was decreed ex-parte on 7-1-1981. On 16-2-1981 the applicant filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree and for restoring the suit to its original number. This was the last date of limitation for moving the application. On this very date the applicant also moved an application under Section 17 of the Act seeking Courts direction regarding furnishing of security in respect of the amount due under the decree. THE Court instead of giving direction regarding security on this date ordered issue of the notice to, the plaintiff-opposite party fixing 11-3-1981 for hearing. THE notice could not be served upon the opposite party and, therefore, the date of hearing was adjourned to 5-5-1981. On the adjourned date objection was filed by the opposite party to the furnishing of security by the applicant ; the case of the opposite party was that there was no occasion to furnish security and that the applicant must deposit the amount in cash. THE court agreed with the objection raised by the opposite party and directed the applicant to deposit the amount due under the decree in cash by 5-7-1981. 5-7-1981 being Sunday and the applicant deposited a sum of Rs. 8,400/- in cash on 8-7-1981. On 30-10-1981 when the application came up for final disposal it was pressed on behalf of opposite party that the applicant had failed to comply with the requirements of the aforementioned proviso within the prescribed time and, therefore, his application under Order 9 Rule 13 was liable to be rejected. This objection found favour with the Court below and accordingly it dismissed the application. Aggrieved by this decision, the defendant has approached this Court through the present revision. Learned counsel for the applicant has submitted that the applicant had complied with the requirements of the proviso when he made an application under Section 17 of the Act on 16-2-1981. According to him the Court should have given direction on this application within the prescribed period of limitation and when the Court failed to issue direction within the said period, the applicant was entitled to be relieved of the hardship which he thereby suffered and in the circumstance of the case the applicant should be deemed to have complied with the requirements of the proviso. Learned counsel for the plaintiff-opposite party counters the arguments advanced on behalf of the applicant and submits that the requirements of the proviso are mandatory and the said requirements have to be complied with within the period of 30 days and the Court has no jurisdiction to extend the said period. According to the learned counsel the mere fact that the Court issued notice of the application to the applicant would not entitle the applicant to any benefit. The learned counsel argues that it was for the applicant himself to comply with the requirements of the proviso within the period and he can have no advantage of any delay on account of the notice of the application having been issued by the Court.
(3.) THE proviso which requires interpretation in this case reads as follows " Provided that an applicant for an order to set aside a decree passed exparte or for a review of judgment shall, at the time of presenting his application either deposit in the court 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." Under the above proviso an applicant has to deposit the amount due under the decree in cash or he may furnish security in respect of the said amount. If the amount due is deposited in cash no directions are required to be obtained from the Court. But if instead of depositing the amount in cash the applicant wishes to give security, he has to obtain directions of the court and in that behalf he has to move an application. The amount has to be deposited at the time of presenting the application ; similarly the security also has to be furnished at the time of presenting the application. Where the application under Order 9 Rule 13 of the Code of Civil Procedure is filed earlier, but the amount is deposited later the application shall be deemed to have been filed on the date on which the amount is deposited. The same would be the position where instead of depositing the amount in cash, security has been furnished ; in other words the application shall be deemed to have been moved on the date the security is furnished. In cases where the amount due is deposited in cash no difficulty arises. The difficulty arises where instead of depositing the amount in cash the applicant desires to furnish security and moves application in that behalf which is not disposed of within the time allowed for moving application under Order 9 Rule 13 of the Code of Civil Procedure, but is disposed of thereafter. In the present case also the position was that although an application had been moved within the period of 30 days, which is the period prescribed for moving an application under Order 9 Rule 13, the same could be disposed of only after the said period had already expired.;