M.Wahajuddin, J. - (1.) THE defendant -applicants have preferred this revision against the judgment and order of the Additional District Judge (Special Judge), Nainital, dismissing the application of defendants under Section 17 of the Small Cause Courts Act. It would appear that an ex -parte decree was passed against the revisionists and they moved an application on 17.7.1982 under Order 9 Rule 13 C.P.C. for setting aside the ex parte decree and another application under Section 17 of the Small Cause Courts Act was moved on 20.7.1982 for permission to file securities for the decretal amount, and the court directed on 21.7.1982 for deposit of 1/3rd of the decretal amount in cash and for furnishing security in respect of the balance amount. Rs. 7,500/ - was deposited in cash on 18.8.1982 and a security was furnished on 19.8.1982 also moving an application under Section 5 of the Limitation Act. The security bond was accepted by the court subject to the legal objections. One of the points that arose for consideration was whether the amount falling due as future mesne profits is also to be deposited besides the decretal amount. The court below rightly held on the strength of number of pronouncements that it is so and on that point there is no dispute. One of the other objections to the effect, that the time for depositing the cash or final security was not extended by the court hence the application under Section 17 of the Act is defeated, also did not find favour with the court below, which held that as an application under Section 5 of the Indian Limitation Act was preferred and no order on the same was passed and as the court impliedly on account or notice to the other side accepted the cash deposit and the security, the delay will be deemed to have been condoned. The view was also based upon an authority of this Court and any ruling to the contrary is not cited. In the present case, the order passed by the court was that the security bond is accepted at applicants' risk subject to legal objections. The court below held that as on the authority of the case of Krishna Kumar v. Hakim Mohammad Umar, 1978 A.L.J. 738 the bond being related to immovable property required registration, it cannot be treated as a valid and effective bond. When the court did not raise this objection while accepting the bond, this consideration should not have weighed with the court in the sense that the party is not to suffer on account of any mistake by the court and if the bond required registration, as rightly held, the course open to the court was either to demand registration or allow time to file another bond. It would further appear that opposite side raised an objection that the cash deposit is short of 1/3rd and the bond amount is also short of 2/3rd, hence there is no compliance of Section 17 of the Small Cause Courts Act and the courts' order dated 21.7.1982. The court below adjudicated only, by its order dated 7.8.1984, that the cash was short by Rs. 100.10 P., and while the security should have been furnished for Rs. 15,200.15 P., it is actually for Rs. 14,500.25 P., i.e., a shortage of Rs. 700.00. The Court further observed that since the entire amount due under the decree including mense profits has not been deposited, there is no compliance of proviso to Section 17 of Small Cause Courts Act. Instead of allowing any time for making good the deficiency, the court outright passed an order dismissing the very application.
(2.) THE point in dispute, therefore, is whether once the security bond was accepted by the court, the court was required to allow time for curing the defects and making good the deficiency after final adjudication on 7.8.1984 or it could dismiss the application outright. In the case of Prabhu Dayal v. District Judge Saharanpur, 1983 A.R.C. 757 it was held that once an application under Section 17 of the Act has been made within time there is a substantial compliance of Section 17 of Small Cause Courts Act and the court has to first apply its mind to sufficiency of the security, then direct the applicant to deposit the same. In this case it was further held that if the security furnished in compliance of courts' order is accepted by the trial court, inspite of the fact that it was unregistered such an order should not be disturbed simply on the consideration that the bond required registration but was not registered. A further observation was made that the revising authority could have itself directed removal of defects or could ask the trial court to remove the defects and the order of rejection of the application is bad.
(3.) THE case of Huknm Khan v. Ist Additional District Judge, Nainital, 1983 A.R.C. 438 which is a Division Bench pronouncement in which a number of pronouncements were considered, is very important. The pronouncement also considered a Full Bench case of this Court Ram Bharose v. Ganga Singh : A.I.R. 1931 Alld. 727 laying down the guide lines for a reasonable and practical interpretation of Section 17. One of the guide lines is that the application is to be filed within the time accompanied by cash or request to furnish the security. The next guide line is that if the court declines the option for security, he must deposit the cash within 30 days. The next guide line, which is important, is that the court will consider the security already offered or name the type of the security. It is, further, laid down that if the court does not, in fact, give any direction but issues notice, the court will be deemed to have approved the deposit of cash and the security offered. Of course, it is further stated that on notice the other side can file objection and challenge the nature and sufficiency of the security and the court in such cases can make further conditions, as it think fit. It was held in the Division Bench case of Hukum Khan (Supra) that as the trial court accepted the security bond, it will be deemed to have approved the deposit of cash and security, and if an objection the security was found short by any sum, the court was right in permitting the respondent to furnish security for that amount and that would be a sufficient compliance of Section 17 of the Act. In the case of Zafar Uddin v. Madan Mohan : A.I.R. 1960 Alld. 612 a Division Bench pronouncement, it has been held that the party should not be penalised for no fault and the court has to give directions and on the principles laid down in this case once the cash security was found short by nominal amount and the security was also found short by small amount, the duty of the court was to then direct the removal of defects and allow time for the same. This would also be true for directing registration of the bond or demanding fresh security of the movables not requiring registration. In view of these Division Bench pronouncements, the single Judge pronouncement of Ahmad Khan v. Ali Bux : A.I.R. 1931 Alld. 103 would not be helpful. The case of Nakse Ram v. II Additional District Judge, 1982 A.R.C. 257 is simply an authority for the proposition that mesne profits payable upto the date of filing of application under Section 17 is also to be deposited and as regards the second point what has been held is that where there is an application for condonation of delay, it has to be considered. In the case of Kiran Koomar v. Baij Nath : A.I.R. 1928 Alld. 607 stress was laid on the acceptance of the bond. If the security amount offered was short and cash deposit was also short and the bond was unregistered, the court could have rejected the same instead of acceptance, asking for fresh bonds and further deposit. In the case of Dullan Prasad v. Smt. Rajeshwari Bibi : A.I.R. 1977 Alld. 151 it was held where deposit of cash security is less than decretal amount, but is accepted by the court, there is sufficient compliance of Section 17 of the Act. In this case also the Full Bench case of Ram Bharose (supra) was considered. In the case of Mahanand Maheshwari v. U.P. State Electricity Board, 1982 Alld. C.J. page 402 the amount was short by certain sums, yet it was held that this would not amount to non -compliance of the proviso to Section 17 of the Act. There is also a latest pronouncement of Lucknow Bench of this Court, Raees Ahmed Shah v. Tara Chand Kesarwani Alld. R.J., 1984 Part 8 page 154, in which it has been held that if the application has been given in time and the court issued notices, the limitation would not stand in the way.;