P L D 1958 (W (PLP)

INAMULLAH, J.‑

This is a revision application under section 32 of the Karachi Small Causes Court Act, 1929 and arises under the following circumstances. On 20th July 1953 a suit was filed by the applicant for the recovery of Rs.1,000 against the opposite party. On 4th September 1953, the summons was duly served on the opponent. On 12th January 1954 the suit was decreed ex pate. The opponent on 12th January 1954 made an appli?cation ‑under Order IX, rule 13, Civil P. C. for setting aside the ex parte decree. The opposite party did not comply with the provision of section 29 (3) in as much as lie did not deposit the decretal amount. He neither deposited the decretal amount nor furnished any security for the same. The decretal amount was however deposited on 25th February 1954. The learned Judge on 29th January 1954 made an order on the application under Order IX, rule 13 Civil P. C.. that the opposite party may either furnish security for the decretal amount or deposit the decretal amount. Thereafter an appli?cation under section 5 of the Limitation Act was filed on 20th April 1954, for condoning the delay in depositing the decretal amount as required by section 29 (3) of the Small Causes Court Act. The ground stated in the application under section 5 of the Limitation Act was that the decree was prepared on 28th January 1954 and therefore, the money having been deposited within 30 days, i.e. on 25th February 1954 was within time. It was prayed under the circumstances that the delay in depositing the decretal amount may be condoned. The learned judge in his order setting aside the ex parte decree condoned the delay. Mr. Naseem the learned counsel for the applicant con?tended that the provision of section 29 (3), Small Causes Court Act was mandatory and the decretal amount having not been deposited at the time when the application for setting aside the ex‑parte decree was made the order of the learned Judge was bad in law. He also contended that section 5 of the Limitation Act had not been made applicable to an application made under section 29 of the Karachi Small Causes Court Act. In order to appreciate the contention of Mr. Naseem it will be convenient to reproduce sub‑clause 3 of section 29 of the Small Causes Court Act which runs as under "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 security to the satisfaction of the Court for the performance of the decree or compliance with the judgment as the Court may direct." ??????????? The language of sub‑clause 3 of section 29, Small Causes Court Act is the same as the proviso of section 17 of the Provincial Small Causes Courts Act (Act IX of 1887) as it stood before the amendment of the same by Act IX of 1935. This proviso has been subject of interpretation by different High Courts and the Courts are not unanimous in their interpretation of this proviso. The principle laid down by the various Courts on the interpretation of this proviso can be summarised as under :‑ It was held that the words under the proviso were merely directory and not mandatory and that the period for deposit of the decretal amount could be extended at the discretion of the Court. The basis of this view was that the words "at the time of presenting his application" being incongruous with the words "as the Court may direct" therefore, the proviso requir?ing the deposit of the money was merely directory and not mandatory. This view was taken in Ramaswami v. Kurisu (13 Mad. 178 (188)); Mukandi Lal v. Pars Ram (1919 P L R 19, 50 I C 917) ; Muhammad Fazal Ali v. Karim Khan (108 P R 1894) ; (overruling Gobind v. Mohan (5 P R (1894)) ; Akula Achaiah v. Challapali Lakshminarasimham (53 I C 926, 37 M L J 433) ; Suryanarayana v. Soundaraja (55 I C 618) and Gedi Mal v. Huna Mal (12 Lah. 359, 32 P L R 504: A I R 1931 Lah. 332 (334), 1311 C 635 (F B)). The other view was that the proviso was not merely direc?tory but mandatory. The object of the legislature was that the applicant must deposit the decretal amount or tender the security for the payment of the same at the time of making his application and subsequent deposit of the money would not cure the defect. This view was taken in Jogi Ahir v. Bishen Dayal (18 Cal. 83 (85)) ; clagannath v. Chet Ram (28 All. 470); Chhotey Lal v. Lakhmi Chand (38 All. 425 (429), 34 I C 113) ; Sri Bhagawct v. Balkaram (20 A L J 209, A I R 1922 All. 29 (30), 65 1 C 596) ; Ahmad Khan v. Ali (1930 A L J 1494, 130 I C 710, A I R 1931 All. 103(104)); Somabhai v. Wadilal (9 Bom. L R 883) ; Umrao cliwan v. Monnumian(2 N L R 23; Chandulal v. Motilal(26 N L R 63 : A I R 1930 Nag. 137,116 I C 641); Pundalik v. Gampat (144 I C 394 : A I R 1934 Nag. 43), Bishen Dayal v. Sheo Tahal (62 I C 108 (109) (Pat.)) ; Khantar v. Punni (54 I C 971 (Pat.)), Dunia Din v. Farzand (3 0 W N 621 : A I R 1926 Oudh 544, 97 I C 581,13 O L J 592), Chedi Khan v. Karimullah (A I R 1936 Pesh. 91). The third view was that if the decretal amount or the security was furnished though not at the time when the application under Order IX, rule 13, Civil P. C. was made for setting aside the ex parte decree but within the limitation prescribed under Article 164 of the Limitation Act it would be sufficient compliance of the proviso to section 17 of the Provincial Small Cause Courts Act. The basis of this view appears to me to be this that it was always open to the party seeking to set aside the ex parte decree to apply within 30 days of the date of the decree or within 30 days when he came to know about the decree having been passed against him if summons was not duly served upon him. Under these circumstances if he deposited the decretal amount or furnished the security within the limitation allowed by Article 164 of the Limitation Act his application should be treated to be in compliance of the proviso to section 17 of the Provincial Small Cause Courts Act. It was open to the applicant to have withdrawn his first application dismissed under Order IX, rule 13, Civil P. C., and to have made another application so long as it was within the limitation prescribed by Article 164 of the Limitation Act along with the deposit of the decretal amount. Some of the cases from which this principle is deducible are Jeun Muchi v. Budhiram (32 Cal. 339 (342)); Bashiruddin v. Sonaulla (15 C W N 102 (106), 6 I C 154); Ram Bharose v. Ganga (A I R 1931 All. 727 (730)), Kiran v. Bajinath (51 All. 402, A I R 1928 All. 607 (608)); Moti Lal v. Durga Prasad (1931 A L J 7, A I R 1930 All. 830 (831). 128 I C 765) ; Haji Ahmad v. Abdulhussein (55 Born. 779, 33 Bom. L R 1433 : A I R 1932 Bom. 40 (41), 135 I C 465); Maniklal v. Khushal (29 N L R 104, 1411 C 813: A I R 1933 Nag. 102 (103)); Narain v. Pudan. (5 Luck. 294, 6 O W N 1014, A I R 1930 Oudh 1 (2), 122 I C 328); Ram Bilas v. Jai Ram (1Bur.LJ75:AIR1922UB18(19),76I C863) ; Sitaba v. Mata Din (20 W N 440: A I R 1925 Oudh 446, 89 I C 442) ; Assan Muhammad v. Rahim Sahib (43 Mad. 579 (584) (F B), 38 M L J 559 ; 55 I C 977). I would respectfully accept the third view, as to my mind it is more in keeping with the principle of equity and also substantial compliance of the mandatory provision of sub?clause 3 of section 29 of the Small Causes Court Act, 1929. Applying this principle to the present case I find that the application under sub‑clause 3 of section 29 was made on 12th January 1954 and the decretal amount was deposited on 25th February 1954 much beyond the time prescribed under Article 164 of the Limitation Act. In the present case I find that the summons had been duly served upon the opposite party. The summons having been duly served on the opposite party the limitation would start running from the date of the decree, i.e. 12th January 1954. The opposite party therefore, has failed to comply with the provision of sub‑clause 3 of section 29 of the Small Causes Court Act. The order passed by the learned judge setting aside the ex parte decree was not in compliance with the law. I would therefore, for the reasons given above set aside the order of the learned judge setting aside the ex parte decree. The revision is allowed with costs. K. M. A. ???????????????????????????????????????????????????????????????????????????????????????????? Revision allowed.