KEDARNATH versus MOHAN LAL KESAWARI AND ORS.

KEDARNATH versus MOHAN LAL KESAWARI AND ORS.

An application to set aside an ex-parte decree passed by a Court of Small Causes must be accompanied by a deposit of the amount due under the decree or by a previous application for leave to furnish security; failure to do so renders the application incompetent and not maintainable. The requirement is mandatory, not directory.

Parties
Appellant: Kedarnath; Respondents: Mohan Lal Kesawari and Ors.
Jurisdiction
India
Judgment Date
10 January 2002
Procedural Posture
Civil Appeal / Final Supreme Court Appeal
Outcome
Appeal allowed
Legal Topics
Ex Parte Decree, Setting Aside Decree, Deposit of Decretal Amount, Eviction, Provincial Small Cause Courts Act Section 17, Order 9 Rule 13 CPC
Civil Procedure Landlord Tenant Ex Parte Decree Setting Aside Decree Deposit of Decretal Amount Eviction Provincial Small Cause Courts Act Section 17 Order 9 Rule 13 CPC

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Parties

Kedarnath

Appellant

Mohan Lal Kesawari and Ors.

Respondents

Procedural Posture

Civil Appeal / Final Supreme Court Appeal

Legal Issues

  1. 1 Whether non-compliance with proviso to Section 17(1) of the Provincial Small Cause Courts Act renders an application to set aside ex-parte decree incompetent
  2. 2 Whether the requirement is mandatory or directory
  3. 3 Whether late application to furnish security is maintainable

Ratio Decidendi

An application to set aside an ex-parte decree passed by a Court of Small Causes must be accompanied by a deposit of the amount due under the decree or by a previous application for leave to furnish security; failure to do so renders the application incompetent and not maintainable. The requirement is mandatory, not directory.

Court Disposition

Appeal allowed

Orders

  • Impugned orders of District Court dated 22.4.1999 and High Court dated 18.5.1999 set aside
  • Order of trial court dated 15.11.1998 restored