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Dinesh Kumar Dubey v. Ganga Shankar Tiwari - WRIT - A No. 2052 of 2004 [2006] RD-AH 16116 (15 September 2006)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


   Court no. 7                                                        

         Civil Misc. Writ Petition No. 2052 of 2004

Dinesh Kumar Dubey         versus        Ganga Shankar Tiwari

Hon'ble Rakesh Tiwari,J.

Heard counsel for the parties and perused the record.

Brief facts of the case are that respondent filed original suit no. 53 of 1997 against the petitioner for ejectment from one shop in ground floor in premises of 104/159 Sisamau, Kanpur Nagar.  The suit was decreed exparte by order dated 24.12.1997.

When the petitioner came to know about the aforesaid order dated 24.12.1997 he moved a restoration application under Order 9 Rule 13 of the Code of Civil Procedure.

It is stated that a compromise was entered into between the parties out side the Court wherein it was agreed that  respondent would file the  compromise in the Court but it was not filed.

The trial Court vide order dated 21.9.2003 dismissed the aforesaid application under Order 9 Rule 13 C.P.C. without considering the merit of the application on the ground that there was no compliance of Section 17(1) of the Act.

Aggrieved by the aforesaid order dated 21.9.2003 of the trial Court, the petitioner preferred a revision before the Court of District Judge, Kanpur Nagar which was also dismissed vide order dated 1.10.2003, hence this writ petition.

 The counsel for the petitioner submits that the petitioner had paid the arrears of rent to the respondent-landlord and no amount was due to be deposited in compliance of Section 17 of the Provincial Small Causes Courts Act, hence the application under Order 9 Rule 13 of the C.P.C. could not have been dismissed by the trial Court on the ground of non-compliance of Section 17 of the said Act. He further submits that since there was compromise between the parties out side the Court, the respondent is not entitled to get the decree of ejectment in respect of the disputed shop and that both the Courts below have committed illegality in passing the impugned orders dated 21.9.2003 and 1.10.2003 in the circumstances stated above.

The counsel for the respondent-landlord submits that both the Courts below have not committed any illegality or irregularity in passing the aforesaid impugned orders and have rightly recorded concurrent findings of facts, hence no interference is required by this Court under Article 226 of the Constitution of India.

He further submits that the compliance of provisions of Section 17 of the Act are mandatory and the application to set aside exparte decree of Small Causes Court must be accompanied by a deposit in the Court of the amount due from the applicant under decree or in pursuance of the judgment which has not been done by the petitioner hence, the Court below has rightly rejected the application for non compliance of Section 17 of the Act vide order dated 21.9.2003 and  its findings have been rightly affirmed by the Revisional Court vide order dated 23.10.2003.

Proviso to Section 17(1) of Chapter IV of the C.P.C. is as under:-

    "Provided that an applicant for an order to set aside a decree passed exparte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf have directed."

   The provisions of Section 17(1) C.P.C. are mandatory in nature. The alleged compromise outside Court has neither been filed in the Court and verified by it nor any application has been moved by either of the parties bringing to the notice of the Court that any compromise has been entered into between the parties as such the release application has become infructuous.

    If law provides that a thing has to be done in a certain manner, it has to be done in that manner only. Section 17(1) C.P.C. provides that an application for setting aside an exparte decree shall at the time of presentation of the application be accompanied by the payment of amount due or such security as the Court may have directed in the judgment for performance of the decree.

Any payment alleged to have been made outside the Court proceedings cannot be said to be payment of amount due or security given in performance of a judgment or decree.

     The trial Court in the circumstances has rightly held that compliance of Section 17(1) of the C.P.C. has not been made which was mandatory, hence the application under Order 9 Rule 13 C.P.C. has been rightly rejected.   There are concurrent findings of fact of both the Courts below. No interference is required by this Court.

For the reasons stated above, the writ petition is dismissed.

Dated 15.9.2006


The order of the appellate Court is as under:-

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