Kamla Prasad Agarwal vs Smt. Savitri Devi and Another

C.S.P. Singh, J.

The Small Causes Court passed an ex parte decree against the defendant on the 3rd August, 1979. An application for setting aside the ex parte decree was made on 16-8-1979, i.e. which was well within time. A prayer was made by the defendant that he should be allowed to file security bond instead of depositing the decretal amount in cash. This prayer was refused on 18-8-1979. Thereafter the defendant did not deposit the decretal amount with the result that the application for setting aside the ex parte decree was rejected. Counsel urged that proviso to Section 17 of the Act gives two options to the defaulting defendant, the first being to deposit the decretal amount in cash, and the other to furnish security. The contention is plainly untenable. So far as security is concerned that can be furnished only when the Court directs that instead of the decretal amount being deposited the defendant shall furnish security. The use of the words "either" and "or" in the proviso does not lead to the result suggested by counsel that the option rests with the defendant, and not with the Court. This is plain from the facts that the defendant has to furnish such security as the Court "may have directed". These concluding words of the proviso leave the option with the Court and not with the defendant. The writ petition fails, and is dismissed.