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Judgment
Prafulla C. Pant, J.—This application MCC No. 471 of 2003 is moved on behalf of the defendant/respondent for recall of the order dated 15.07.2013, passed by this Court in Civil Revision No. 33 of 2011, whereby this Court has allowed the revision, and decreed SCC no. 2 of 2010, after the defendant/respondent remained absent at the time of final hearing. The recall application has been moved under Order 9 Rule 13 of Code of Civil Procedure, 1908, read with section 151 of the Code. Though, the application was accompanied with the affidavit of Dr. K.P. Singh (respondent) but when the application was filed there was no compliance of proviso to section 17 of Provincial Small Cause Courts Act, 1887.
It is pertinent to mention here that revision decided by this Court, was filed u/s 25 of Provincial Small Cause Courts Act, 1887. Proviso to section 17 requires that whether an application for setting aside the ex-parte decree or for review of the judgments is filed, at the time of presenting such application the applicant is required to deposit the amount due from him under the decree or to give such security for the performance of decree/judgment, as the court may on a previous application made by him directs.
The respondent filed the application for compliance of section 17 of Provincial Small Cause Courts on 14.08.2013, i.e. after about a week of filing of recall application (application for setting aside the ex-parte decree by this Court) that too after the objection raised by the plaintiff/revisionist. In the circumstances it cannot be said that the compliance of proviso to section 17 has been made by the respondent/opposite party.
The principle of law laid down in Smt. Ram Piyari Vs. Budh Sen and Others, , which provides that the defendant/respondent can file an application for setting aside the ex-parte decree alongwith application filed u/s 5 of Limitation Act, 1963, is of no help to the respondent, for the reason that in the present case there was no compliance of proviso to section 17 at the time of filing the application to set-aside the ex-parte decree. Application of condonation of delay could have been entertained only if the application under Order 9 Rule 13 was filed after the period of limitation. That is not the case here. Infact the condition required under the proviso to section 17 is the condition is precedent for filing the application for setting aside the ex-parte decree (passed by the Judge, Small Cause Court/Revisional Court). For the reasons as discussed above, the recall application (MCC) no. 471 of 2013 and miscellaneous application (CLMA) no. 8619 of 2013 are rejected. However, in the interest of justice, the respondent Dr. K.P. Singh is allowed time upto 31st December, 2013 for vacating the premises whereafter the plaintiff/revisionist shall be at liberty to execute the decree.