- (1.) This is a petition under Art.226 of the Constitution of India. A Suit No. 48 of 1979 was filed by Khurshad Ali against Mohan Lal and Anil Kumar in the Court of Judge Small Causes for ejectment and recovery of rent and damages. The property in dispute was a shop situated in Darau Road, Kichha, district Nainital.
(2.) The suit was decreed ex parte by an order dated 9th May, 1980. The operative portion of the decree is as follows : - "Plaintiffs suit for ejectment of defendants from shop in suit; for recovery of Rs. 147.50 as arrears of rent and for recovery of pendente lite and future damages at the rate of Rs. 75/p.m. is decreed with costs ex parte."
(3.) On May 15, 1980, only five days after the suit was decreed ex parte, the tenants Mohan Lal and Anil Kumar, who are petitioners in this Court filed an application under O.IX, R.13 of the Code of Civil Procedure (hereinafter referred to as the C.P.C.) for setting aside the ex parte decree. On that very date an application was made by the petitioners praying that the amount already deposited by them in the Court be treated as security under S.17 of the Provincial Small Causes Court Act. This application was allowed by the Court and the following order was passed : "Allowed. The amount which has already been deposited by defendant is more than the decretal amount. In my opinion that amount is a sufficient security.";