ARTI DIXIT & ANR versus SUSHIL KUMAR MISHRA & ORS

Citation: [2023] 5 S.C.R. 728 · Decided: 18-05-2023 · Supreme Court of India · Bench: K.M. JOSEPH · Disposal: Dismissed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2023] 5 S.C.R.
   [2023] 5 S.C.R. 728
728
ARTI DIXIT & ANR
v.
SUSHIL KUMAR MISHRA & ORS
(Civil Appeal No.3858 of 2023)
MAY 18, 2023
[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
Provincial Small Cause Courts Act, 1887: s. 17 – Decree
passed by a court of Small Causes ex-parte, under the proviso to
s.17 – Application to set aside the ex-parte decree – Mandatory
requirements – Held: Applicant must deposit in the court, the amount
due under the decree or should give security for the performance
of the decree ‘on a previous application’ made by him in this behalf
– Such application can be filed up to the date of the application u/
Ord. IX r. 13 and the security must be made available along with
such application – On facts, court of Small Causes passed an ex-
parte decree against the appellants for ejectment and recovery of
arrears of rent and taxes – Appellants filed an application u/Ord.
IX r. 13 rw s. 151 CPC seeking setting aside of the ex parte decree,
and on the same day filed application u/s. 17 and sought permission
for depositing/furnishing surety – Subsequently an application was
filed that the security in the form of rental shop owned by the
Municipal Corporation be taken on record and the same was allowed
– Pursuant to remand, the trial court rejected the application filed
u/s.17 as also the application filed to take the security on record –
Surety provided by the appellants was also rejected – Said order
was confirmed in the revision petition, as also in the writ petition by
the High Court – On a literal interpretation of s. 17, the appellant
did not seek for dispensing with deposit as such, thus, the appellant
had not in the said sense complied with the mandatory requirement
of s. 17 – Furthermore, the security furnished by the appellant
through the surety, who is a tenant, is not acceptable in law having
regard to s. 17(2) as the shop belonged to the Municipal Corporation
and it could not be sold for enforcing the surety – Code of Civil
Procedure, 1908 – Ord. IX r. 13
Dismissing the appeal, the Court
HELD : 1.1 When a Decree is passed by a Court of Small
Causes ex-parte, inter alia, under the proviso to Section 17 of
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the Provincial Small Cause Courts Act, 1887, the applicant, who
files an Application to set aside the ex-parte Decree is bound to
do the following: he must deposit in the Court, the amount due
under the Decree; in the alternative, he should give security for
the performance of the Decree ‘on a previous Application’ made
by him in this behalf. [Para 18][747-H; 748-A-B]
1.2 As regards the question whether the Application is in
conformity with the proviso to Section 17 and did the applicant
furnish any security on 06.05.2014, the answer can only be in the
negative. The appellant did not seek for dispensing with deposit
as such. Therefore, the appellant had not in the said sense
complied with the mandatory requirement of Section 17. [Para
21][749-F]
1.3 The High Court in the impugned order finds that no
application for dispensing with surety was filed and that this will
be read against the appellants. The High Court perseveres in
this observation on three occasions. It is observed that what
Section 17 of the Act contemplates in the proviso is that the
applicant seeking to set aside an ex-parte decree inter alia must
either make a deposit of the amount in question or give security.
In Kedarnath’s case it has been laid down that the provision as to
deposit can be dispensed with by the Court. The applicant can, in
other words, seek a dispensing with of the deposit and seek leave
for furnishing such security as the Court may direct. Therefore,
the High Court was not correct in proceeding on the basis that
appellants did not make any application for dispensing with surety.
No doubt, at one place, the High Court states that there is no
prayer for dispensing with the surety or the amount sought to be
deposited by way of security. The prayer of the appellants was to
permit deposit/furnishing surety of Rs.50000/- which was part of
the decretal amount. This could be treated impliedly as seeking
a direction within the meaning of Section 17. An applicant could
no doubt also propose the security which he wishes to give. In
fact, ordinarily, an application for dispensing with the cash deposit
and for direction to furnish security should be made prior to
application under Order IX Rule 13 of CPC. On the order passed
on the same, the applicant is to comply wi

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