Wanchoo, C. J. - (1.) THIS is a revision by Amin Md. Ishak against the order of the Small Cause Court Judge, Udaipur, restoring a, suit. which had been decreed ex parte against Abdul Sakoor-opposite party. The suit was for a sum of Rs. 6/- only and decree that was passed was for Rs. 5/- and costs.
(2.) THE facts which have led to this revision are these : THE decree was passed ex parte on the 28th of April 1950. On the 29th of April 1950 the opposite party appeared and prayed for restoration. THE reason which he gave for non-appearance on the 28th of April was that he was under the impression that the court would be held as usual from 11. a. m. , and appeared in the court premises on the 28th of April at 11. 15 a. m. But it seems that four days before court time had been changed to morning hours from 7 a. m. to 11 a. m. Consequently, the opposite party when he arrived on the 28th of April found that he was too late and the suit had been decreed ex. parte. He, therefore, made an application for restoration on the 29th of April 1950. Unfortunately, the learned Judge Small Cause Court thought that this was not a sufficient explanation for non-appearance on the 28th of April. I cannot agree with this view of the Small Cause Court Judge. It is quite probable that the opposite party had no notice of the change in court-hours. The applicant has not challenged the statement of the opposite party that he had come to court on the 28th of April. Inspite of sufficient cause, however, the Judge, Small Cause Court, restored the suit on payment of Re. 1/- as costs. That order was, in my opinion, correct though the reason given by the learned Judge does not appeal to me. It has now been urged on behalf of the applicant that as the mandatory provisions of section 15 of the Rajasthan Small Cause Court Ordinance No. VIII of 1950 had not been complied with, the suit could not have been restored. The proviso to s. 15 provides that an applicant who wants an ex parte decree to be set aside should either deposit the amount decreed ex parte at the time of presenting his application for restoration or give such security for the performance of the decree as the court may on a previous application made by him in this behalf have directed. There is no doubt that in this case the opposite party did not make a previous application for permission to give security. What he did was to apply for restoration and say that he was prepared to give security in the same application on the 29th of April 1950. The security was verified before the court on the 2nd of May 1950. There is no order of the court accepting the security or giving permission to the applicant to give security instead of making the deposit in cash. This may be due to the court not having been cognizant of the provisions of s. 15 of Ordinance No. VIII of 1950 or to its not having read it when dealing with the present matter. It seems to me, however, that the very fact that the court took the trouble of verifying the security bond must be deemed to mean that the court was permitting the opposite party to give security as required by the proviso to s. 15. The only matter then remains is that there is no previous application by the opposite party for permission to give security. This is undoubtedly so but I am of the opinion that the principle of the decision in Jeun Muchi vs. Budhi Ram Muchi 32 Cal. 339 should still hold good even though there has been a slight amendment in the proviso to s. 17 of the Provincial Small Causes Act which corresponds to s. 15 of Ordinance No. VIII of 1950. It has been held in that case that if the requirements of the section were complied with within the period prescribed for such application in the Limitation Act, it might be treated as sufficient as no objection could have been taken if afresh application had been presented when the security was deposited. In this case also the security was accepted by the court on the 2nd of May 1950 and a fresh application could have been made by the opposite party up to the 27th of May 1950. Therefore, I am of the opinion that there was sufficient compliance with the provisions of s. 15 of Ordinance VIII of 1950. The last point that was urged was that the security actually given was not in strict compliance with the proviso to s. 15. I consider this objection as too technical. I am, therefore, not prepared to interfere in revision in this case. The revision is hereby rejected. Considering, however, the circumstances of the case, I make no order as to costs. .;