Lal Gayendra Singh vs Musammat Tirsa

George Knox, J.—This application arises out of a suit that was brought in a Small Cause Court. The suit was decreed ex parte. After it had been decreed ex parte, the defendant applied to have the ex parte order set aside but she did not, at the time of presenting the application, either deposit the amount due under the ex parts decree or give security to the satisfaction of the Court for the due performance of the decree. The Small Cause Court set aside the decree, saying that it had passed it without remembering that the defendant was represented by any Pleader. The plaintiff now applies to this Court that the order setting aside the ex parte decree may be set aside, on the ground that the decretal amount was not paid in Court or security given for payment and so the Court had no jurisdiction, The Court certainly had no jurisdiction to pass the order that it did and I have no alternative but to set it aside. It is contended that the Court acted under its inherent powers and not upon the application. I cannot accept this. Where the law lays down definite procedure, that procedure must be followed. The Small Cause Court Judge was certainly to blame for having passed the order that he did, but the law was there and the defendant who had a Pleader must be presumed to have had knowledge of it. He should have carried out the law and then this difficulty would not have arisen.

The application is allowed and the order of the Court below is set aside. I make no order as to costs.