In this case an ex parte decree was passed on the 27th of July 1917. The defendant alleging that he did not become aware of the decree till the 26th of August 1917, and that the summons was not served on him personally applied to set aside the ex parte decree. This was on the 29th August 1917.
It is conceded that along with the petition, the amount of the decree was not deposited. It is said that it was deposited before the application was heard. We express no opinion as to whether this deposit after the time allowed for the application is valid or not. The only question before us is whether the provision in Sect. 17 of the Act IX of 887, is directory or mandatory Parker and Wilkinson, JJ., held in Ramasami v. Kurisu that it was not mandatory. Mr. Justice Miller in Chaturvedula Suryanarayana v. Chaturvedula Ramamma(2) did not dissent from this view. So this decision of Parker and Wilkinson, JJ, has stood unchallenged in this Court for nearly 30 years: and we feel no doubt that the practice regarding the receipt of the deposit amount in the Mofussil Courts has been in consonance with that ruling. We would therefore have followed the ruling without assigning reasons, had it not been for the fact that Mr. Justice Ayling in the Admission Court and Mr. Justice Krishnan in the final Court sitting as a single judge have questioned the correctness of Ramasami v. Kurisu If we may say so, the language of Sect. 17 of the Moffussil Small Cause Court's Act does not seem to lend itself to the interpretation placed upon it in Ramasami v. Kurisu In Jogi Ahir v. Bishan Daya Sigh(3); Jagan Nath v. Chet Ram(4) and Somabhai v. Wadilal(5) the ruling of this Court has not been accepted as good law. But the interpretation is not without precedent. In regard to cases under the Pensions Act, which by Sects 4 to 6 require a certificate of the Collector, before the plaint is filed, it has been held that the production of the certificate before judgment would cure the defect. The same view was taken of the requirements of Sects. 92 and 93 of the Civil Procedure Code relating to the sanction of the Advocate-General or the Collector. Reference may also be made to suits for which the production of a succession certificate is necessary. These classes of cases supply an analogy for the liberal interpretation placed on the section in I.L.R, 13 Mad., 178. Further, the policy of the legislature in demanding payment is to enable the successful decree-holder to take out immediate execution. The relief in a Small Cause suit being expected to be a speedy and summary one, the legislature demands that the successful plaintiff should not be put off for a further period by not making the decree amount available to him for immediate execution. Therefore although if the case had come before us for the first time we would have taken the view which the plain language of Sect. 17 suggests, having regard to the fact that the decision now questioned has been law in this presidency for nearly 30 years, that there is nothing opposed to justice in the interpretation placed on the section by two learned judges of this Court and that there are analogies which may justify the view taken in I. L. R., 13 Mad. 178. We think it unnecessary to refer the matter for the consideration of the Full Bench.
We must reverse the order of the Lower Court and remit the application for disposal in the light of the above observations. Costs will abide
K.V.SCase remanded.