Bombay High Court
Ranjitsingh S/O Dadusingh ... vs Narayan S/O Dhondbaji Deshmukh on 2 November, 2017
Bench: P.N. Deshmukh
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION NO.84 OF 2017.
APPLICANT: Shri Ranjitsingh s/o Dadusingh
Suryawanshi, aged about 72 years,
Occu: Business, R/o Near Vijay Manglekar
Jwellers, Hansapuri, Bhandara Road,
Nagpur.
: VERSUS :
NON-APPLICANT: Shri Narayan Dhondbaji Deshmukh,
aged about 43 years, Occu: Labour, R/o
House No.595/24, Bharat Nagar, Nagpur.
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Mr.S.S.Sitani, Advocate for the applicant.
None for respondent.
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CORAM: P.N.DESHMUKH, J.
DATED : 2nd NOVEMBER, 2017.
ORAL JUDGMENT :
1. Heard Shri S.S.Sitani, learned counsel for the
applicant. None for respondent though appears to be served. In
fact, matter was adjourned for today with a view to give an
opportunity to respondent to defend the application on merits,
inspite of that none present for respondent.
2. This Civil Revision Application is directed against the
judgment and order dated 13th April, 2017 passed on application,
Exh.8 in M.J.C.No.106 of 2016 by the learned Small Causes Court
Nagpur, whereby application moved by applicant for non-
compliance of Section 17(1) of the Provincial Small Cause Courts
Act, 1887 (hereinafter referred to as "Act of 1887") in the
proceedings initiated by non-applicant under Order 9, Rule 13 of
the Code of Civil Procedure for setting aside ex parte decree,
came to be rejected. It is thus specific case of applicant that he
had filed a suit for eviction from residential house vide Reg.Civil
Suit No.113 of 2016 which came to be decreed and had initiated
execution proceedings against the non-applicant who filed
application under Order 9, Rule 13 of C.P.C., for setting aside ex
parte judgment and decree by filing M.J.C.No.106 of 2016. In the
said M.J.C. applicant herein filed an application, Exh.8 praying
for dismissal of proceedings contending that same is taken out
without compliance of Section 17(1) of the Act of 1887, which is
stated to be mandatory in nature. However, the learned trial
Court rejected the application. Hence, this appeal.
3. Learned counsel for the applicant in support of present
application has relied upon judgment in the case of Kedarnath
..vs.. Mohan Lal Kesarwari and ors. reported in (2002) 2 SCC
16. It is noted that the applicant is original landlord while non-
applicant is tenant in the suit premises being residential house
situated at Nagpur and the suit came to be decided ex parte for
which non-applicant has initiated civil proceedings wherein
applicant moved an application for rejection of said proceedings
for non-compliance of mandatory provisions of Section 17(1) of
the Act of 1887. Having considered facts as aforesaid, it is
necessary to deal with the procedure and scheme stipulated in
Section 17 of Provincial Small Cause Courts Act, 1887. Section
17 of the Act reads thus -
"17. (1) the Procedure prescribed in the Code of
Civil Procedure, 1908, shall save insofar 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 the
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 of compliance with the
judgment as the Court may, on a previous
application made by him in this behalf have
directed."
Since the other part of provision of section 17 is not
relevant for the controversy in question, the same is not
incorporated. The proviso to sub-section (1) implicitly makes it
clear that in case of a decree which is passed ex parte and when
the application to set aside the same is made, it is mandatory for
the judgment debtor as per procedure stipulated in provision
either to deposit in the Court the amount due from him under the
said decree or give such security for the performance of the decree
on a previous application made by him in this behalf. This
requirement is mandatory in nature.
4. In the instant case it is not in dispute that the ex parte
decree was passed and was also executed and due to passing of ex
parte decree, non-applicant had filed application under Order 9,
Rule 13 of the Civil Procedure Code for setting aside same which
is found to be filed without compliance of Section 17(1) of the Act
of 1887. The Hon'ble Apex Court in the case of Kedarnath (cited
supra) in para no.8 of its judgment has observed as follows -
"8. A bare reading of the provision shows that the
legislature has chosen to couch the language of the
proviso in a mandatory form and we see no
reason to interpret, construe and hold the nature
of the proviso as directory. An application seeking
to set aside an ex parte decree passed by a Court
of Small Causes or for a review of its judgment
must be accompanied by a deposit in the court of
the amount due from the applicant under the
decree or in pursuance of the judgment. The
provision as to deposit can be dispensed with by
the Court in its discretion subject to a previous
application by the applicant seeking direction of
the Court for leave to furnish security and the
nature thereof. The proviso does not provide for
th extent of time by which such application for
dispensation may be filed. We think that it may
be filed at any time up to the time of presentation
of application for setting aside ex parte decree or
for review and the Court may treat it as a
previous application. The obligation of the
applicant is to move a previous application for
dispensation. It is then for the court to make a
prompt order. The delay on the part of the court
in passing an appropriate order would not be held
against the applicant because none can be made
to suffer for the fault of the Court."
5. It is evident from the above referred observations of
the Apex Court that the procedure prescribed in the proviso to
sub-section (1) of Section 17 of the Act is mandatory in nature
and therefore application for setting aside ex parte decree must
be accompanied by a deposit in the Court of the amount due
under the decree if not deposited earlier. Similarly, the
application for dispensation can be filed at any time up to the
time of presentation of application for setting aside ex parte
decree and is not maintainable thereafter.
6. In the instant case, trial Court has completely
misconceived the provisions of Section 17 of the Act and as such
the impugned order cannot be sustained in law and is therefore
liable to be quashed and set aside. In the result, Civil Revision
Application is allowed in above terms. No order as to costs.
JUDGE.
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