Brijesh Kumar, J.:— This writ petition has been preferred by the tenant of House No. B 1/3, Mahanagar Extension, Kursi Road, Lucknow, it appears that the petitioner had occupied the premises sometime in 1976. The opposite party no. 1 filed a suit in the year 1984 against the petitioner for ejectment, recovery of arrears rent and damages. The suit was decreed ex parte on 22 April, 1985 awarding a decree against the petitioner for ejectment, recovery of arrears of rent amounting to Rs. 3,570/- and damages for Rs. 850/, along with the pendents lite and future damages at the rate of Rs. 1,700/- per month subject to payment of requisite court-fee. The suit was decreed with costs. The petitioner was given one month's time to vacate the premises. The petitioner on coming to know of the ex parte decree moved two applications one under Order IX Rule 13 C.P.C and the other, under Order XXI Rule 26 read with Section 151 C.P.C The application for setting aside ex parte decree was rejected by opposite party No. 2. The petitioner has impugned the said order dated 15 March, 1986 passed by opposite party No. 2.
2. The point for consideration in this petition is short. The opposite party No. 2 has rejected the application on the ground that the provision of Section 17 of the Provincial Small Cause Courts Act have not been complied with which is a mandatory condition.
3. There is no dispute about the fact that the petitioner while applying for setting aside ex parte decree did not make deposit of pendente lite and future damages for use and occupation, decreed in favour of plaintiff. On behalf of the petitioner, it has been submitted that the decree for pendente lite and future damages for use and occupation was passed subject to payment of requisite court-fee. Therefore, the petitioner was not required to deposit that amount in compliance with the provisions of Section 17 of the Provincial Small Cause Courts Act, as undisputedly no court-fee on the said amount of pendente lite and future damages had been paid by opposite party No. 2. Besides the above contention, it has also been submitted that the petitioner has deposited rent under Section 30 of U.P Act No. 13 of 1972 in Misc. Case No. 33 of 1984 in the court of Munsif South, Lucknow. This amount, according to the petitioner, was not taken into account by opposite party No. 2 while passing the order. Yet another submission made is that the petitioner had deposited the amount which he was directed to deposit by the court on the application moved for stay of execution proceedings under Order XXI Rule 26 read with Section 151 CPC. This, according to him, amounts to sufficient compliance of the orders of the court. A copy of the order passed by the execution court dated 12.10.1985 has been filed as Annexure S-1 along with the supplementary affidavit which the petitioner was permitted to file on 19.11.1987, although the arguments were heard and the judgment was reserved earlier. This permission was granted only in the interest of justice. A reply to the supplementary affidavit was also filed on November 20, 1987 which was ordered to be placed on record. The order dated 12.10.1985 passed by execution court reads as under:—
“Amin C.C Lucknow—
The execution of delivery of possession is stayed till 14.10.1985 subject to deposit of Rs. 6,900/- to Amin or D.H in Ex. case No. 4/85 pending in the court of IV ADJ, Lucknow.
Sd/- Ashok Kumar
IV ADJ 12-10-85
1.50 PM”
4. From a perusal of the above order, it is clear that it was passed in Execution Case No. 4 of 1985.
5. Let us take up the first point, namely, as to whether the petitioner was required to deposit the amount decreed for pendente lite and future damages for use and occupation subject to payment of court-fee which has, admittedly, not been paid. Learned counsel for the petitioner has submitted that the decree for pendente lite and future damages would not come into being unless the additional court-fee was paid; therefore, that part of the decree was not executable as a consequence whereof he was not required to deposit the amount which could not be realised in execution of the decree. In support of this contention he has, placed reliance upon some cases. He has cited Bhagwan Das Arora v. Ist Additional District, Judge, Rampur . 1983 9 A.L.R 540 S.C.. In that case, the matter related to furnishing of security bond in place of decretal amount. The appellant had furnished the security bond stamped with a court-fee stamp of Rs. 20/- instead of on a general stamp. The view taken was that the appellant should not suffer for this technicality. This case is, therefore, not applicable to the present case. In Kararri Chand Mohan Singh v. Basheshwar Nath,2, it was held that the provisions of Section 17 of the Provincial Small Cause Courts Act should be liberally applied. That was also a case regarding furnishing of security. In the present case, the question of technicality is not involved but the question is whether the petitioner was liable to deposit the amount on account of pendente lite and future damages for use and occupation of the building. Therefore, this case is also of no help to the petitioner. The next case is Ram Saran Das Tarachand v. Ram Richhpal L. Mannu Lal . A.I.R 1963 Punj. 206.. It is also of no help to the petitioner as in that case it has been held that the court should see if the substantial compliance with Section 17 of the Provincial Small Cause Courts ‘Act has been made or not. In the present case we find that the difference of amount is substantial. Therefore, it cannot be said that the requirement of Section 17 of the Provincial Small Cause Courts Act has been substantially complied with Ram Bharose v. Ganga Singh,4 is not applicable to the facts of the present case as the question involved in the present case was not considered by the Full Bench. Reliance has also been placed upon a case reported in Kallu Mal v. Ch. Bikramajit Singh . A.I.R 1933 Alld. 13.. In this case reliance was also placed upon a case reported in AIR 1925 Allahabad, p. 412 to hold that amount due under the decree would mean the amount which was due under the ‘decree at the date it was given. The ex parte decree was set aside in that case and their lordships observed that it was not a case for interference. Otherwise also in the present case, even the pendente lite damages have not admittedly been paid. Learned counsel for the petitioner has not been able to cite any case holding that mesne profits decreed need not be deposited while applying for setting aside the ex parte decree unless the court fee on the amount of mesne profits has been paid by the plaintiff.
6. In reply to the above submission, it has been contended on behalf of opposite party No. 1 that it may be different if the decree-holder may like to execute a decree and then he may be required to deposit additional court fee before execution, but where a decree has been passed and the judgment debtor wants the same to be set aside, he has to make all the deposits in compliance with Section 17 of the Provincial Small Cause Courts Act before his application under Order IX, Rule 13 C.P.C may be entertained. It has been submitted that in case of non-deposit of additional court-fee, the amount may not be realisable in execution of the decree nonetheless liability of payment of such amount is definitely created. Thus in terms of Section 17 of the Provincial Small Cause Courts Act he must deposit such amount as well. In support of his contention he has placed reliance upon a case reported in Nakse Ram v. Second Additional District Judge, Aligarh . 1982 1 A.R.C 257.. The learned Single Judge while agreeing with an earlier decision of this Court observed that the payment of court-fee did not affect the decree which was for the mesne profits as well. The amount would be deemed under the decree whether court fee was paid or not. The argument advanced in that case that the amount decreed from mesne profits would not be payable in absence of payment of court-fee was repelled. In the other case Smt. Gayatri Devi v. District Judge, Gorakhpur,7 it was held that for compliance of Section 17 of the Provincial Small Cause Courts Act, the judgment debtor had to deposit the amount of pendente lite and mesne profits notwithstanding the fact that the court-fee on the said amount was not paid by the decree-holder. It was further observed that it was only necessary for the decree-holder to pay the court-fee if he had applied for execution of the decree. The other case relied upon is reported in P.C Dwada-shahreni and Company Pvt. Ltd. v. Third Additional District Judge, Aligarh . 1982 2 A.R.C 176.. It was held in this case that even though the court-fee may not be paid for the mesne profits-which has been decreed but it is still an amount due against the judgment debtor and the same has to be deposited in compliance with Section 17 of the Provincial Small Cause Courts Act. This Court in another case has also taken the same view as mentioned above, namely, in a case reported in Roop Basant v. Durga Prasad . 1983 1 A.R.C 565.. It was held that, the judgment debtor was liable to deposit the mesne profits decreed even though no court-fee was paid on the said amount as non-deposit of court-fee does not wipe out the liability of tenant. A reference has also been made to a case reported in Ravi Shanker v. V. Additional District Judge, Aligarh . 1982 2 A.R.C 109. in which the same view as was taken in the cases mentioned above, was taken. In this case A.I.R 1925 Allahabad Page 412 relied upon on behalf of the petitioner has been distinguished. Yet another case relied upon is reported in Mijan v. Second Additional District Judge, Lucknow . 1986 2 A.R.C 316. In this case also it was held that while applying for setting aside a decree under Section 17 of the Provincial. Small Cause Courts Act, the judgment debtor was liable to deposit the mesne profits which had been decreed. For the purposes of drawing an analogy, the learned counsel for opposite party No. 1 has also placed reliance upon a case reported in Khadi Gram Udyog Trust v. Shri Ram Chandraji Virajman Mandir . 1978 4 A.L.R 37 S.C.. In this case, it was held that as required under. Section 20(4) of U.P Act, No. 13 of 1972 the entire amount-was to be deposited which was held to include rent which had become time-barred.
7. In view of a number of decisions mentioned above, the legal position is very clear and no doubt can be entertained about the same. “The petitioner was thus required to deposit the amount of pendente lite mesne profits despite the fact that no court-fee was paid by opposite party No. 1.
8. It was then contended on behalf of the petitioner that he had made a deposit of Rs. 6,900 as ordered by court on 12-10-1985. Therefore, he was not required to deposit any other amount and it should be taken as sufficient compliance with the provisions of Section 17(1) of the Provincial Small Cause Courts Act. This argument though appears at the first look fascinating but it need not detain us long. The petitioner had moved two separate applications; one under Order IX Rule 13, C.P.C for setting aside ex parte decree and the other for stay of the execution proceedings which appear to have been initiated by opposite party No. 1. The order dated 12-10-1985 was passed in Execution Case No. 4 of 1985 by which the delivery of possession was stayed till a particular date subject to deposit of Rs. 6,900 by the petitioner. This amount which was deposited, was not in compliance with Section 17(1) of the Provincial Small Cause Courts Act. It could no doubt be very well adjusted against the amount liable to be deposited in compliance with Section 17 of the Provincial Small Cause Courts Act but by no means this amount if falls short, can be held to be in compliance with Section 17 of the Provincial Small Cause Courts Act. The liability is cast upon the judgment debtor under Section 17 of the Provincial Small Cause Courts Act to make deposit of the amount as provided under the said section and requires no order by the court for making such a deposit. Admittedly the amount deposited by the petitioner in pursuance of the order passed by the court in execution proceedings, did not fully satisfy the entire decretal amount. Therefore, the deposit made by the petitioner cannot be taken to satisfy the condition imposed under Section 17 of the Provincial Small Cause Courts Act.
9. It has then been submitted that the petitioner had deposited amount of rent under Section 30 of the Act No. 13 of 1972 for a period from July, 1984 to October, 1985. It was deposited in case No. 33 of 1984 pending in the court of Munsif, South, Lucknow. These averments are made in paras 6 and 7 of the application under Order IX, Rule 13 C.P.C a true copy of which has been filed as Annexure-6 to the writ petition-It has been submitted that this deposit has not been taken into account while holding that the amount deposited by the petitioner was short of decretal amount. In this connection I may observe that the learned court below has rightly observed that the Act No. 13 of 1972 did not apply when the deposits were made; therefore, it could not be taken into account. As observed in the order by the court below, there was no dispute about the fact that the house was constructed in April, 1976 and according to own admission of the petitioner, he had deposited the amount under Section 30 of U.P Act No. 13 of 1972 for the period from July, 1984 to October, 1985. In this connection, the learned counsel for opposite party No. 1 has placed reliance upon a case reported in Badi Vzzaman v. District Judge, Kanpur . 1987 1 A.R.C 74. wherein it has been held that the amount deposited under Section 30 of U.P Act No. 13 of 1972 cannot be taken into account for the period during which the provisions of Act No. 13 of 1972 would not be applicable. It may farther be observed that the amount of pendente lite and mesne profits would be much more. The court below has observed that this amount would be Rs. 28,862.75 P. which was required to be deposited in compliance with Section 17 of the Provincial Small Cause Courts Act and if for the sake of argument all the deposits of the petitioner are accepted, the total amount deposited by the petitioner comes to Rs. 18,900 which falls short by near about Rs. 10,000. Therefore, the petitioner can claim no benefit from the said deposits for the purpose of compliance with Section 17 of the Provincial Small Cause Courts Act.
10. In view of the discussion held above, I find no merit in the petition and the same is dismissed with costs.
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