- (1.) D. K. Seth, J. Leave is granted to; amend the cause title so as to convert this petition into one under Article 227 of the Constitution.
(2.) THE petitioner, as plaintiff, instituted Suit No. 18 of 1989 against the respondent No. 3, herein as defendant in the Court of Munsif City/judge Small Cause Courts, Farrukhabad, for ejectment on the ground of default in payment of the rent. By an order dated 3-10-1989 the said suit was ordered to be proceeded ex pane. Ultimately the suit was decreed ex pane on 11-1-1990. One Ghulam Rabbani filed suit No. 220 of 1990 against the plaintiff herein and the defendant-respondent No. 3 herein as defendants for declaration that ex pane decree dated 11-1-1990 is a nullity and void. In the said Suit No. 220 of 1990 the defendant-respondent No. 3 herein made an application on 8-9-1990, praying for time for filing written state ment. THE petitioner alleged that it was the defendant-respondent No. 3 herein who got the said suit No. 220 of 1990 filed through Ghulam Rabbani to avoid execution. After having found that the purpose would not be achieved through the said suit the respondent No. 3 on 2-4-1991 filed an application for setting aside ex pane decree under Section 17 (1) of the Provincial Small Cause Courts Act together with an application under Section 5 of the Limitation Act. The plaintiff filed his objection to the said two applications. But, however, by an order dated 28-4- 1992 the learned Munsif, condoned the delay and allowed the application under Section 17 of the Act setting aside ex pane decree. The petitioner then preferred Revision No. 11 of 1992 before the learned District Judge, against the said order dated 28-4-1992 which was ultimately allowed by an order dated 4- 12-1992 by setting aside the order dated 28-4-1992. The learned Dis trict Judge in his order dated 4-12- 1992 was pleased to observed that the respon dent may file requisite deposits to the satisfaction of the trial Court, if permitted by the trial Court. Against this observation in the said order, a Writ Petition No. Nil of 1993 was moved by the petitioner. The said writ petition was disposed of by an order dated 15-1- 1993 by allowing the petitioner to contest the depositing the amount of security while observing that the defendant shall have to satisfy the trial Court that even at this belated stage the security could be deposited. Thereupon the defendant filed an application for permitting him to file security to which the petitioner had filed his objection. It is contended by the petitioner that no fresh application for restoration, however, has been filed, by the defendant, inasmuch as restoration application moved on 2- 4-1991, registered as 5/74/91 and re-numbered as 15/71/92 was the application which was being decided by an order dated 13-5-1993. By the said order dated 13-5-1993 the learned Munsif had allowed the ap plication of the defendant by condoning the delay and setting aside ex pane decree rejecting the petitioner's objection after allowing the deposit of security of the petitioner. The petitioner's Revision No. Nil of 1993 was dismissed by the District and Sessions Judge, Farrukhabad, by an order dated 27-5-1993, affirming the order dated 13-5-1993. It is against this order dated 27-5-1993 affirming the order dated 13-5-1993 which are under challenge in the present petition. Learned counsel for the petitioner contends that in view of Section 17 of the Provincial Small Cause Courts Act (hereinafter referred to as the Act) the application for setting aside of a decree is to be presented upon depositing the decretal amount or upon furnishing security for performance of the decree as directed by the Court on the previous application. In the present case the application has not been proceeded either by any deposit or by any previous application or any direction for furnishing the security. The provision of Section 17, according to him is mandatory. The non-compliance thereof makes such application non-maintainable. Secondly, he contends that the defendant had knowledge about the said decree which is apparent by filing of the Suit No. 220 of 1990, which he got filed through Ghulam Rabbani. Even if the said proposition is not accepted even then the defendant had knowledge of the ex parte decree as soon he appeared in Suit No. 220 of 1990. By no manner his knowledge could be placed at a date later than 8-9-1990 on which date he had applied for time for filing the written statement in Suit No. 220 of 1990. Therefore, filing of the application on 2-4-1991 is wholly belated and no amount of explanation could be put forward, to obtain condonation therof. Therefore, according to him both the learned courts below have acted illegally and within material irregularity and wholly without jurisdiction in allowing the defendant's application.
(3.) LEARNED counsel for the defendant-respondent No. 3 on the other hand contends that in view of the order dated 4-12-1992 which was not interfered with by the order dated 15-1-1993 passed in Writ Petition No. (sic) of 1995 and the obser vation made in the said order dated 15-1-1993 the defendant is entitled to deposit the said amount and, therefore the orders impugned are valid and legal, lie further contends that as soon the order is set aside by order dated 4-12-1991 the parties were reverted back to the same situation, namely, to square and and, therefore, the petitioner was entitled to present a fresh application under Section 17 of the Act upon compliance with the deposit. Since the deposits have been made though be latedly, therefore the same should be accepted as substantial compliance, In order to appreciate the situation it is necessary to refer to Section 17 of the said Act which runs as under: "17. Application of the Code of Civil Procedure.- (1) The procedure prescribed in the Code of Civil Procedure, 1908 (5 of 1908) shall save in so far as is otherwise, provided by that Code or by this Act, be the procedure followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits: Provided that an applicant for an order to set aside a decree passed ex pane 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 of compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed. (2) Where a person has become liable as surety under the proviso to sub-section (1), the security may be realised in manner provided by Section 145 of the Code of Civil Proce dure, 1908 (5 of 1908 ). " The Proviso to sub section (1) of Section 17 lays down two conditions for making an application for setting aside ex pane decree or for review of the judg ment, the first condition is that at the time of presenting the application the ap plicant should deposit the amount due from him under decree. The second condi tion enables the applicant to furnish security at the time of presenting such an application provided he obtains a directions from the Court on an application made previous to the presentation of the application for settings aside ex pane decree, permitting the applicant to deposit such security.;