JUDGMENT
1. This is a petition asking us to revise the order of the Subordinate Judge of Tuticorin, refusing to set aside an ex parte decree passed in a small cause. The petitioner alleges that he came to know of the decree, which had been passed on 31-3-1920, only about two weeks before he filed his petition on 30-7-1920. Unfortunately owing, as the lower court has found, solely to a mistake of his pleader’s gumasta, he did not pay with his petition the whole of the decree amount. On the other side objecting that his payment was deficient he however, made good the deficiency. But he did so after the time of 30 days from the date of his knowledge of the decree within which his petition would have been in time The question then was whether the court could excuse the delay under Section 5 of the Limitation Act. It has refused to do so and we have been asked to revise its order of refusal.
2. The Lower Court has dealt with the matter at considerable length, although it is really in our opinion very simple We do not propose to follow the lower court through its’ over elaborate discussion. Shortly its difficulty was that Section 5 has been made applicable by an order of this High Court to petitions under Order IX, Rule 13 but it has not been made applicable to payments under the proviso to Section 17(1) of the Provincial Small Cause Courts Act. This however, can in our opinion, easily be met. There was of course no difficulty under the former Code. Section 17(1) of the Small Cause Courts Act makes the chapters and the sections of the Code specified in the 2nd schedule thereof the procedure to be followed in Courts of Small Causes in all suits and in all proceedings arising out of such suits, subject of course, so far as Section 108 of the previous Code was concerned to the proviso already referred to. The Code now in force no doubt does not reproduce the schedule of the former Code; but that is clearly because the legislature took another course and embodied the contents of the schedule in substantive provisions of the code itself. For there is firstly the general application of the Code to all courts subject to the superintendance of the High Court, There is next Section 7, which specifies certain substantive provisions of the Code as not applicable to Small Cause Courts, and Order 50, which excepts certain orders. Neither Section 7 however nor Order 50 excepts Order 9. It is therefore clear that Order 9 will be applicable to the case before us. This is sufficient to displace one argument, which has been suggested that the section taken with the 2nd schedule of the former Code and Section 158 of the present Code cannot be read as applying the provisions of the present Code, in so far as they differ from those of the former Code. Section 5 of the Limitation Act having . been applied to Order 9, it will be none the less applicable to the procedure under that Order, when that procedure takes place in a court of Small Causes.
3. It is then however argued that the payment required by the proviso to Section 17(1) must be considered as independent of the petition for setting aside a decree passed ex parte and that Section 5 cannot be applied to the making of that payment, as justifying the court in excusing the delay in making it. The answer is that the payment is directed only in connection with the filing of the petition under Order 9, Rule 13 and is as much an element required in order to the completeness of such a petition as any other portion of it, for instance the stamps or verification, and this view of the payment referred to in the proviso to Section 17(1) is entirely consistent with the tenor of the judgment of the Full Bench of this Court in Asan Mahomad Sahib v. Rahim Sahib (1920) I.L.R. 43 Mad 573 : 38 M.L.J. 539.
4. The result is that the order under revision cannot be sustained or the grounds given by the lower court. The lower court has already placed on record its opinion that, if discretion to excuse the delay in making the payment were vested in it, this would be a case, in which that discretion might properly be exercised, and we see no reason for dissent on that point.
5. The remaining question is accordingly whether the petitioner did, as he alleges in paragraph 3 of his affidavit come to know of the passing of the decree against him only about two weeks before his petition was filed. On that point the lower court has recorded no evidence and there is no finding. We must set aside the lower court’s order and remand the petitions for re-admission and disposal in the light of the foregoing, after enquiry as to whether the petitioner’s statement just referred to is true. Costs to date will be costs in the cause and will be provided for in the order to be passed by the lower court.
