- (1.) AMARBIR Singh Gill, J. This judg ment shall dispose of both the writ peti tions, as common question of law is in volved. The short question which requires decision in these two writ petitions is the application of proviso to Section 17 (1) of Provincial Small Cause Courts Act, 1887.
(2.) IN writ petition No. 2801 (R/c) of 1983 an exparte decree dated 17-3-81 passed by the Judge Small Cause Courts, Faizabad for ejectment of the petitioner as also for arrears of rent with costs and pendente lite and future damages on payment of requisite Court fees is in dispute. The petitioner filed an application for setting aside the exparte decree on 2-7- 81 and also deposited the decretal amount. He, however, deposited costs etc. subsequently on 3-9-81. Objec tion to the tender were filed by the decree holder. The Judge Small Cause Courts vide judgment dated 22-9-82. copy of which is Annexure-3, relying upon proviso to Sec tion 17 of the Act dismissed the application for setting aside the ex pane decree. Petitioner filed a revision, which also met with the same fate and was dismissed on 16-5-83, copy of judgment is Annexure-4. In writ Petition No. 5077 (R/c) of 1981 the facts are somewhat similar. An ex pane decree dated 20-8- 74 was passed for ejectment of the petitioner besides pendente lite and future damages at the rate of Rs. 30/-per month till the delivery of possession. The defendant filed an application for set ting aside the same under Order IX, Rule 13, CPC on 9-4-80 and also deposited the sum of Rs. 408. 95 towards the decretal amount. Admittedly without depositing any amount towards rent and damages pendente lite along with the interest such an applica tion could not be made. This application for setting aside the decree was also dismissed by judgment dated 14-1-81 vide Annexure-3, by Judge Small Cause Courts, Lucknow holding that the applicant did not comply with the provisions of Section 17 proviso one of the Act by not depositing the pendent late and future damages, for use and occupation and dismissed the application accordingly. In revision as well as similar view was taken by order dated 16-9- 81 passed by III Additional District Judge, Lucknow, copy of which is Annexure-5. The learned Counsel for the parties have been heard.
(3.) THE proviso to Section 17 (1) of the Act reads as under:- "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 ap plication, 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 perfor mance of the decree or compliance with the judg ment as the Court may, on a previous application made by him in this behalf have directed. " A bare perusal of the aforesaid provision leaves no doubt in any manner of its mandatory nature and its non-com pliance amounts to an illegality. It is so because an application for setting aside an ex parte decree is to accompany with the deposits in the Court of the amount due from the applicant under decree or in pur suance of a judgment. The applicant by itself becomes incompetent without the deposits aforesaid on account of mandate contained in the expression "shall" in the proviso. Ex pression "amount" under the decree also includes the amount in pursuance of the judgment that apart from the decretal amount any other direction for payment of damages pendente lite or future for use and occupation if ordered have to be part of decretal amount i. e. the amount claimed by the plaintiff in the suit. The Small Cause Court while decreeing the suit ex pane for ejectment decreed not only for arrears of rent but also for future mesne profits, the payment of future mesne profits thus be comes part of decretal amount and the judgment-debtor in order to seek setting aside of such a decree, if fails to make the full deposit, the Court is justified in reject ing his application and refusing the setting aside of ex pane decree. This Court has already taken a similar view in the case of Salik Ram v. Sita Devi, 1979 Allahabad Weekly Cases 96. In another case Mohd. Yaseen v. Jai Prakash, 1988 Allahabad CJ 702, it was held that if the requirements of the proviso are not satisfied the Court has no further jurisdiction left to pass any order with regard to furnishing of security or to allow the defendant to pay the decretal amount later on. In the case of Ram Chandra v. IX Addl. District Judge, 1991 AWC 670 also it was observed that the deposit of the amount due from the ap plicant under the decree was to be made at the time of presentation of application under Order IX, Rule 13. CPC and if any application for deposit is made sub sequently, it is not permissible being not in compliance with the proviso to Section 17 of the Act.;