K.S.Das Gupta J. - (1.) The petitioner was defendant in a suit before the Small Cause Court at Alipore for recovery of arrears of rent. The suit was decreed ex parte. On 9-4-1949 he filed an application under Order 9, Rule 13, Civil P. C., for setting aside the 'ex parte' decree. The provision in Section 17(1), Provincial Small Cause Courts Act is that the procedure prescribed in the Code of Civil Procedure, 1908, shall, save in so far as is otherwise provided by that Code or by the Provincial Small Cause Courts 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. It was this provision which made available to the petitioner the procedure of an application under Order 9, Rule 13, Civil P. C., and, as already stated, he took advantage of this provision and filed an application for setting aside the decree. Section 17(1) has, however, a further provision in its proviso which is in these words: "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 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." The result of this is that an application under Order 9, Rule 13, Civil P. C. for setting aside a decree passed under the Provincial Small Cause Courts Act is not a valid application unless either the applicant deposits in Court the decretal amount or gives such security as the Court on his application may direct. When the petitioner filed the application under Order 9, Rule 13, Civil P. C. no cash was deposited. The Court thereupon ordered him "to deposit money, at his risk, by 30-4-49". On 27-4-49, on an application by the petitioner to be permitted to furnish security instead of cash deposit, the Court ordered, "He is to furnish security, at his risk by 30-4-49", On 27-4-49, on an application by the petitioner to be permitted to furnish security instead of cash deposit, the Court ordered. "He is to furnish security, at his risk by 30-4-49." On 30-4-1949 a security bond was filed by the petitioner. The document is in these words: "In the 2nd Court of the Munsif at Alipore, 24 Parganas. Misc. Case No. of 1949 S. C. C. Suit No. 381 of 1947 Sk. Kasem Ali, Applicant v. Kanai Lall Pal and Ors. Opposite Party. Security Bond. Whereas an ex parte decree has been obtained by the opposite party against the applicant in the aforesaid suit and whereas the applicant Sk. Kasem Ali has brought a case for setting aside the said ex parte decree under Order 9 Rule 13 on the ground of fraud and non-service of summons. And whereas the Court has ordered the applicant to furnish sufficient security. Therefore I Ahmad Ali Khan son of Md. Ali Khan of Vistipara Tollygunge have voluntarily become surety and do hereby bind myself, my heirs and executors to the said Court that the applicant judgment-debtor shall pay the decretal amount at any time when called upon; and in default of such payment I bind myself, my heirs and executors in respect of my share in the property described in schedule below to pay to the said Court at its order decretal sum amounting to Rs. 179/12/9. In witness whereof I set my hand and seal this 30th day of April, 1949. Witnesses: Ahmad Ali Khan 1. Gourhari Mandal, Pleader
(2.) (Illegible) Schedule above referred to. All that piece and parcel of about 8 Cottas of land hereditament together with a two storied building standing thereon being and situated at premises No. 38 Russa Road South within Tollygunge Municipality, P. S. Tollygulge, District 24 Parganas butted and bounded On the North By Sultan Alim Road On the East By Kanai Lal Halder's land On the South By the house of Shah Mouji Nanci and On the West By Russa Road My share in the property is 4 as. 6 pies and approximate value of my share in the property is Rs. 20,000/- Ahmad Ali Khan." This bond was written on a stamp paper of Rs. 1/8/0 but had no court-fee stamp affixed. Immediately after the bond was filed, the Court passed an order directing the Sheristadar to test and report on the bond. On 14-5-1949 the Court passed the following order: -- "It appears that the applicant has not filed -/8/- as adhesive stamp on the security bond. Applicant to file the same. Put up on 21/5 for the same and for Sheristadar's report." Eight annas court-fee stamp was filed by the petitioner on 18-5-1949. On 21-5-1949 the Court after consideration of the Sheristadar's report passed an order accepting the bond and ordered further "Call for the record and put up on 4/6 for orders." Thereafter, the application under Order 9, Rule 13, Civil P. C. was heard and was allowed and the Court passed an order restoring the suit. 2. This Court was moved by the opposite party against the order allowing the application under Order 9, Rule 13, Civil P. C. and it was urged that the security bond, not being duly stamped and not registered as required by law, there was not a proper compliance with the conditions prescribed in the proviso to Section 17(1), Provincial Small Cause Courts Act, and, therefore, the application under Order 9, Rule 13, Civil P. C. was not maintainable.
(3.) The matter came up for hearing before Chunder, J. and His Lordship remanded the case to the Small Cause Court to be heard by some other Judge than the learned Munsiff who decided the application on the first occasion -- for decision of two objections raised on behalf of the plaintiff viz. the bond required adhesive stamp and further that it required registration, and directed, "If the court below finds that these objections are proper it will reject the application under Order 9, Rule 13. If the court finds that they do not affect the petition filed by the defendant then it will proceed with the merits of the case". After the matter went back in accordance with this order, the learned Munsiff, who heard it, decided that the bond required, under the law, to be stamped with adhesive court-fee stamp of annas eight, and also that it required registration and in that view rejected the application under Order 9, Rule 13.;