- (1.) THE revision is directed against the order passed by the learned I Additional Sub-Judge, Erode in I.A.No.62 of 2000. THE defendants are the revision petitioners. THE respondent herein filed suit O.S.No.220 of 1998 on instrument herein filed suit O.S.No.220 of 1998 on instrument dated 25.3.1996. THE defendants in the suit are the legal representatives of the deceased Thiyagarajan.
(2.) THE suit was posted for the evidence of the defendants on 6.7.1999. As the defendants failed to appear on that date, ex parte decree was passed. THEreupon, the first defendant filed an application underO.9, Rule 13, C.P.C. stating that she fell sick of diarrhea and vomiting and that she could not attend the Court and that therefore, the ex parte decree may be set aside. THE plaintiff filed counter resisting the above application. On consideration of the materials on record, the trial Court allowed the petition imposing certain conditions. The trial Court has passed order directing the defendants to deposit Rs.2 lakhs on or before 28.9.2000, failing which, the application would stand dismissed and the application was posted to 29.9.2000. It is seen that the conditional order was not complied with. Thereafter on 1.12.2000, the defendants have filed this revision challenging the above conditional order. It is contended by the revision petitioners that the amount mentioned in the condition order is over and above the suit claim and that the trial Court ought to have considered the reasons assigned by the petitioner for non-appearance on the hearing date and that the conditional order passed by the trial Court is an onerous order. On the other hand, learned counsel for the plaintiff/ respondent contended that against the order passed underO.9, Rule 13, C.P.C., only an appeal will lie and that the revision is not maintainable and that in any event, the trial Court is empowered to impose certain conditions for setting aside the ex parte decree. Learned counsel for the revision petitioners and also learned counsel for the plaintiff respondent cited number of decisions in support of their contentions. Before proceeding further to decide the crucial point involved in the revision, it would be useful to refer to the nature of the order passed by the trial Court. It is seen that the revision petitioners filed application underO.9, Rule 13, C.P.C. for setting aside the ex parte decree. The trial Court has allowed the petition imposing certain conditions to be fulfilled on or before 28.9.2000. As per the above conditional order, the revision petitioners have to deposit a sum of Rs.2 lakhs into Court. It is also specifically stated in the order that the application would stand dismissed, if the petitioner fails to deposit the amount within the stipulated date. Now, the question, is: whether only an appeal would lie against the said order.
(3.) AS perO.43, Rule 1(d), C.P.C. an appeal shall lie against the order under Rule 13 ofO.9 rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte. It is contended by the learned counsel for the respondent/ plaintiff that the order passed by the trial Court imposing conditions is a final order and that the appeal has to be filed within 30 days from the date of said order. On the question as to from which date, the order will become final, learned counsel relies upon a decision reported in Kotaiah v. Narasimham Kotaiah v. Narasimham Kotaiah v. Narasimham (1948)2 MLJ. 596: A.I.R. 1949 Mad. 469. The facts of the above case will show that the trial Court passed order on 3.7.1946 directing the petitioner to deposit the amount on or before 2.8.1946 failing which the petition will stand dismissed automatically. The court relying upon a decision reported in C.Ramayya v. M.Lakshmayya C.Ramayya v. M.Lakshmayya C.Ramayya v. M.Lakshmayya (1945)1 MLJ. 339: I.L.R. 1945 Mad. 203 has held thus: "Where the petitioner had to do certain things, namely, to deposit costs, etc., into Court, to get the ex parte order set aside, with a direction that if he did not do so, the petition was to stand dismissed with costs, the order would be a final one and the appeal should be filed within thirty days." The above decision will show that the order passed by the trial Court in this case, imposing certain conditions to be complied with on or before 28.9.2000, is a final order. An identical question also came up for consideration before this Court in the decision reported in Balarama v. Subbarama (1953)1 MLJ. 40: A.I.R. 1953 Mad. 360. In the above decision, the Court has held thus: "Where an application is made by the defendant to set aside an "ex parte" decree passed against him and the Court makes a conditional order directing the decree to be set aside on certain conditions in default of which the application is to be dismissed, such an order is final for the purpose of an appeal allowed underO.43, Rule 1(d), C.P.C. For an appeal from such an order time begins to run from the date the order is made and not from the date when the Court makes a further order dismissing the application on the failure to perform the condition." The contrary view expressed in Rajagopalachari v. Thathachariar A.I.R. 1925 Mad. 1182 was not approved in the above decision. In the above decision, the Division Bench Judgment of this Court i.e., C.Ramayya v. M.Lakshmayya C.Ramayya v. M.Lakshmayya C.Ramayya v. M.Lakshmayya (1945)1 MLJ. 339: I.L.R. 1945 Mad. 203 is followed. The Court has further observed thus: "With great respect I am in agreement with the view taken by Mockett and Bell, JJ. that the first order in such cases must be regarded as final and appealable. It is tantamount to a rejection of an appeal unless certain conditions are satisfied. It is open to a party affected by such an order to appeal on the ground that the conditions imposed are too onerous, that the ex parte decree should be set aside or the suit restored to file without any terms at all." It is, thus, seen from the above decision that conditional order is a final order and that it is appealable. Learned counsel for the respondent relies upon a recent judgment of this Court reported N.Palanisamy v. C.Rathinasami N.Palanisamy v. C.Rathinasami N.Palanisamy v. C.Rathinasami (1992)1 MLJ. 6. It is seen from the facts of the above case that the trial Court passed an order directing the appellant to deposit one half of the decree amount as a condition for setting aside the ex parte decree and the Court gave time till 5.8.1991 and adjourned the matter to 6.8.1991 for further orders. Meanwhile, the appellant preferred an appeal against the order imposing the condition on the ground that it was onerous. Having regard to the above facts, this Court has held that the order challenged in the appeal is not one which will fall underO.43, Rule 1(d), C.P.C. As there is no order rejecting the application filed underO.9, Rule 13, C.P.C. and that unless there is an order rejecting the application, no appeal will lie. The Division Bench judgment of this Court i.e., C.Ramayya v. M.Lakshmayya C.Ramayya v. M.Lakshmayya C.Ramayya v. M.Lakshmayya (1945)1 MLJ. 339: I.L.R. 1945 Mad. 203 is also referred to in the above case. The Court has held that the above ruling of the Bench will not apply to the case reported in the above appeal. The decision of the Division Bench in Ramayya's case is considered by the Court in the following terms: "In that case, a rolled up order was passed by the Court. The order while directing deposit of costs, declared that the petition will stand dismissed with costs in the event of the deposit not being made. Subsequently, an order was passed by the Court stating that the earlier order itself declared the petition to be dismissed in the event of default and therefore, no further order was necessary and the decree passed already would stand. In the appeal against the said rolled up order, the Bench held that the said appeal was maintainable, as in the said order it set out the consequences of the default and declared that the petition will stand dismissed." Attention of this Court is also drawn to an identical question, which has arisen in the Rent Control Appeal Basil Products v. Mathuram Perumal (1994)1 MLJ. 55. The facts of the above case would show that the Court passed orders on 20.3.1986 directing that the petition would be allowed on payment of Rs.25 on or before 2.4.1986 and stipulating that failing payment, the petition would be dismissed and the petition was called on 3.4.1986. As the amount had not been paid the petition was dismissed. "B" filed an appeal against the order dated 3.4.1986. It was also dismissed. Thereupon, he filed a revision. Considering the above facts, the High Court has held that the first order was the only order in the case and the second order was nothing more than recording the local position which had arisen from the non-fulfilment of the condition and that the second order was not any further order, because no further order was required in the case. For coming to such a conclusion, the Court has also followed the Division Bench judgment reported in C.Ramayya v. M.Laksmayya C.Ramayya v. M.Laksmayya C.Ramayya v. M.Laksmayya (1945)1 MLJ. 339: I.L.R. 1945 Mad. 203. The above decision is also an authority for the proposition that if the conditional order is passed in the application underO.9, Rule 13, C.P.C. and if the conditions are not fulfilled within the stipulated time, as a result of which the petition would stand dismissed automatically, then the appeal has to be filed within 30 days from the date first order and not from the second order. The Patna High Court also, in the decision reported in Mufti Reazuddin v. Maheshanand A.I.R. 1929 Pat. 529, has held thatO.43, Rule 1(d), C.P.C. specifically provides for an appeal against the order passed underO.9, Rule 13, C.P.C. rejecting the application to set aside the decree passed ex parte. A Full Bench of Assam High Court in the decision reported in Madanlall v. T.M.Bank Ltd. Madanlall v. T.M.Bank Ltd. Madanlall v. T.M.Bank Ltd. A.I.R. 1954 Assam 1 has held thus: "First let us examine whether an appeal would be competent against an order of dismissal of an application underO.9, Rule 13, Civil P.C. for default of appearance of the petitioner.O.43, Rule 1(d), Civil P.C. provides that an appeal shall lie from an order under Rule 13 ofO.9 rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte. The Rule does not say that an appeal will be competent only in cases where the application underO.9, Rule 13 is rejected on consideration of the merits. There being nothing in the statute to the effect that an appeal is competent only when the order is passed on consideration of merits, it must be presumed that an order rejecting an application to set aside an ex parte decree no matter under what condition passed, will be open to appeal." It is thus explicit from the decisions referred to above that underO.43, Rule 1(d) the conditional order passed by the court in the application filed underO.9, Rule 13, C.P.C. is an appealable order. It is also seen from the above decisions that if the Court imposes certain conditions to be complied with before the stipulated date and the consequence of such non-compliance is stated in the very order itself, then it would be a final order. In this case, it is specifically stated in the order that the application would stand dismissed if the amount is not deposited within the stipulated date. Therefore, I have no hesitation in holding that the order passed by the trial court in this case is an order which falls underO.43, Rule 1(d), C.P.C. and that the remedy of the aggrieved party is only to file an appeal and not a revision. ;