- (1.) S. P. Srivastava, J. The defendant-petitioner feels aggrieved by an order passed in a revision under Section 25 of the Provincial Small Causes Court Act whereunder holding that the application filed by him seeking setting aside of the ex parte decree was not maintainable, the order passed by the trial court setting aside the ex. parte decree has been reversed restoring the ex. parte decree passed against the petitioners.
(2.) I have heard Sri H. S. Sahai, learned counsel for the petitioner and the learned counsel representing the plaintiff-respondents and have carefully perused the record. The facts in brief shorn of details and necessary for the disposal of the case lie in a narrow compass. The plaintiff-respondent had filed a suit praying for a decree of ejectment against the defendant- petitioner and for the recovery of arrears of rent and damages pendente lite and future. This suit was decreed ex parte by the trial court on 25-1-79. The trial court had decreed the suit for ejectment of the defendant from the accommodation in dispute and a decree for recovery of Rs. 2012. 62 P. , as arrears of rent and damages and the water-tax besides a decree in respect of pendente lite and future damages at the rate of Rs. 50 per month till the date of ejectment of the defendant or for a period of three years whichever was later had also been granted. The defendant had moved an application on 31-5-79 praying for the setting aside of the ex parte decree. However, he deposited only an amount of Rs. 2012. 62 P. , in compliance to the proviso to Section 17 of the Provincial Small Causes Court Act. The plaintiff objected to the maintainability of the application seeking setting aside of the ex. parte decree on the ground that the requirement of Section 17 of the Provincial Small Causes Court Act had not been complied with. While considering this aspect of the matter the trial court observed that since the entire money for which the decree had been put into execution had been deposited, there was sufficient compliance of the requirement of the proviso to Section 17 of the Provincial Small Causes Court Act and proceeded to dispose of the application on merits. It was indicated that the defendant will be taken to have deposited the entire money that was due under the decree since the plaintiff himself had put the decree in execution claiming only the amount which stood deposited.
(3.) THE order of the trial court setting aside the ex. parte decree was challenged in revision. THE revisional court, however, was of the view that the amount of pendente lite and future damages in respect whereof the decree had been passed by the trial court had to be taken to be amount due under the decree but inasmuch as the said amount had not been deposited by the defendant there could be no justification for holding that the entire money due under the decree had been deposited. In the aforesaid view of the matter the revisional court set aside the order passed by the trial court maintaining the ex parte decree holding that the application filed by the defendant seeking setting aside of the ex parte decree was not legally maintainable in the absence of compliance of the requirements of Section 17 of the Provincial Small Causes Court Act. The learned counsel for the petitioner has strenuously urged that since the entire amount which was sought to be recovered by the plaintiff as due under the decree which is evident from the application seeking execution of the decree filed by him had been deposited, the revisional court should not have interfered in the order passed by the trial court holding the application to be maintainable. It has further been urged that in any view of the matter the plaintiff had not initiated the execution proceedings in respect of the amount of pendente lite and future damages and had not paid any court fee therefor, with the result that the said amount could not be deemed to have become due under the decree.;