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TMI Blog1983 (7) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... present appellant. On service of the summons, the appellant appeared and contested the suit by filing his written statement. The suit came to be adjourned for hearing to August 6, 1977. On that day, the appellant and his advocate were absent and the suit was decreed ex parte. On August 6, 1977, appellant appeared and moved an application under the proviso to Section 17(1) of the Provincial Small Cause Courts Act, 1887 ('Act' for short) requesting the Court to permit him to give such security for the performance of the decree in lieu of the liability to deposit in cash the amount due from him under the decree. On the same day, the Court granted him the permission subject to the condition that the appellant shall deposit ₹ 2700 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Court in its order dated August 8, 1977 on or before August 31. 1977, when the substantive application under Order 9 Rule 13 was filed and the surety bond submitted by the appellant on a court-fee stamp of ₹ 2 being not a legal document, there was non-compliance with the proviso to Section 17(1), and therefore the application under Order 9 Rule 13 was liable to be dismissed. The application of the appellant was accordingly dismissed. After an unsuccessful revision petition to the District Court under Section 25 of the Act, the appellant moved a petition under Article 227 of the Constitution in the High Court of Judicature at Allahabad. 2. A learned Single Judge of the High Court after noticing the conflict of opinion be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal is whether the surety bond which a judgment-debtor has to furnish for complying with the order made under the proviso to Section 17(1) would be governed by Article 6 of Schedule 2 of the Court-fee Act or Article 57 of the Indian Stamp Act. The learned judge referred to the conflicting views expressed by the Madras High Court on the one hand and the Calcutta and Bombay High Courts on the other and preferred the view taken by the Calcutta High Court in this behalf. This conflict of opinion may be noticed first. A full bench of Madras High Court in Kalapati Peda Pitchamma v. Chiruvelia I.L.R. 1935 Mad 380. held that an order made by the Court under the proviso to Section 17(1) is nonetheless an order passed under the CPC as the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave own reservations whether Article 57 would at all be attracted but we are not disposed to resolve this controversy in this case and leave it for a more detailed argument because in this case, as directed by the Court, the appellant had furnished the requisite stamps to be affixed on the surety bond which was submitted within the period of limitation. 6. To recall a few facts, an application praying for an order under the proviso to Section 17(1) was made within 2 days from the date on which the suit was decreed ex parte. The suit was decreed ex parte on August 6, 1977 and the application under the proviso to Section 17(1) was made on August 8, 1977. On that very day, the Court made an order for security bond to be furnished for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Single Judge of the High Court. Till then, the trial court was faced with two conflicting views of two different High Courts. What ought to be the position of an indigent litigant, advised by his lawyer, in this situation left us guessing if not wholly bewildered. We are of the opinion that in this situation, the litigant cannot be visited with the consequence of being thrown out of court and shutting the doors of justice in his face. What horrible agonosing situation, the appellant faced cannot be gauged. He had produced the surety bond on the first day i.e. August 8, 1977 duly stamped as then advised. And had the learned Single Judge preferred the Madras view which required that it should be stamped with court-fee stamp, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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