R.R.Misra - (1.) THIS revision by the defendant-applicant has been filed against an order dated. 20th February 1987 whereunder his restoration application has been rejected for non-compliance of proviso to section 17 of the Provincial Small Cause Courts Act (hereinafter referred to as the Act). Since the defendant-applicant Mohd. Yasin was in arrears of rent with effect from 1st July 1979, an ex-parte decree for recovery of arrears of rent and ejectment was passed on 1st October 1984 against him. He moved an application for restoration under Order 9 rule 13 of the Code of Civil Procedure on 10th October 1984 but neither the decretal amount was deposited nor security was furnished. In fact no previous application regarding security was moved by the defendant- applicant earlier and even on 10th October 1984 in his application under Order 9 rule 13 of the Code of Civil Procedure all that has been said is that the date fixed la the case was 1st October 1984 and the reason for absence of the applicant was explained on medical ground. Nothing was stated in this application as to whether the decretal amount has been deposited or not or whether the applicant is prepared to furnish security. A stay application was also moved on that date. In that application also nothing was mentioned. However, one more application dated 10th October 1984 purporting to be under section 17 of the Act was also moved. In this application it was specifically mentioned as follows :- " Dicrital amount jama karne ke liye filhal prarthi prativadi ke pas koyee intajam nahin hai. Prarthi prativadi sakhshi jamanat dene ko taiyar hai." On this application the following order was passed by the Court as is clear from the record of the trial court which has been produced before this Court !- " Order Personal security for whole amount is not acceptable. The counsel for applicant submits that major part of decretal amount has been already paid. He should give particulars in 3 days. Sd. 10/10 "
(2.) AGAIN on 15th October 1984 another application was moved for furnishing details of the part of decretal amount which was alleged to have been deposited by the defendant-applicant. It is the admitted case of the parties that complete decretal amount was subsequently deposited by the defendant-applicant only in February 1985 long long after the aforesaid date, viz. 10th October 1984 the date of moving the application under section 17 of the Act and the expiry of the time limit provided for moving the said application. Factually, however, vide its order dated 15th October 1984 the court allowed the applicant to deposit security within the statutory period but the same also could not be complied with. The defendant filed a third-party security before the court on which on 9th November 1984 the court passed an order that the revenue extracts of land should be filed. Admittedly these revenue extracts of land have not been filed so far. The court below, therefore, held that there has been no compliance of the proviso to Section 17 of the Act which was mandatory and no security was also furnished within the statutory period and even the decretal amount was deposited after expiration of the period prescribed for restoration. Hence the impugned order was passed by the court below. I have heard learned counsel for the applicant. During the course of his submission the learned counsel has laid great emphasis and has relied upon the fact that at some subsequent stage the court had issued notice to the opposite party to file objections and, therefore, the provisions of Section 17 of the Act have been sufficiently complied with. Relevant portions of the said section, however, reads as follows :- " 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-parte 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 or compliance with the judgment as the court may, on a previous application made by him in this behalf, have directed. " From a perusal of the above, it is clear that after the amendment of the said section in the year 1935, any one of the two things which is required to be done is either the amount due under the decree is deposited by the defendant or security for the performance of the decree as the court may, on a previous application made by him in this behalf as directed, is furnished. As held by this court in Krishan Kumar v. Hakim Mohammad Umar, 1978 ALR 541 if no previous application is made in regard to the furnishing of the security, the defendant must pay the amount in full but in either event the deposit of the security has to be furnished within 30 days from the date of the decree as provided under Article 123 of the Limitation Act.
(3.) IN the present case it is not disputed that no previous application was made by the applicant in this behalf for directions of the court and even no oral application 'was also made for the said purpose. As held by this court in the case of Roop Basant v. Durga Prasad, (1983) 1 ARC 565 the proviso to section 17 of the Act cuts down the very wide discretion which courts have under Order 9 rule 13 of the Code of Civil Procedure. The person against whom the decree is passed should either deposit the decretal amount or give security. No other alternative is allowed. In this case it has further been held that the requirements of the proviso are mandatory in character and its non-compliance could result in the rejection of the application for setting aside the ex-parte decree.;