N.K. Mehrotra, J. - (1.) This is a revision under Section 115 of the Code of Civil Procedure against the order dated 4.9.2003 passed by the Civil Judge, Senior Division, Unnao in Misc. Case No. 83/2003, Prima Impex International and Ors. v. Super House Leather Limited.
(2.) It appears that the respondent Super House Leather Limited filed a suit against the revisionist for a decree of mandatory injunction against the defendant directing the defendants to comply the terms of contract and make payment as per schedule annexed to the plaint along with pendente lite and future interest @ 24% per annum with quarterly, rest, The suit was decreed ex parte for making the payment of Rs. 6,68,710. The revisionist moved an application under Order IX. Rule 13 of Civil Procedure Code for setting aside the ex parte decree dated 21.8.2002 and along with that application, moved another application 7C for staying the execution of the decree which was being executed in Execution Case No. 218/03 in the Mumbai Court. The application under Order IX, Rule 13, C.P.C. was kept pending and instead the learned Civil Judge passed a detailed order on the application 7C for staying the execution proceeding on 4.9.2003. The Civil Judge allowed the application for slaying the execution proceedings and directed that the execution of the decree shall remain stayed upto the disposal of the application under Order IX, Rule 13 of the Civil Procedure Code on the condition that half of the amount of the decree is deposited in cash as security. It is against this order that the instant revision has been filed. Order IX, Rule 13 of the Code of Civil Procedure is as follows : "Order IX, Rule 13.-- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside, and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment in the Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit : Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also : Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. Explanation.--Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree."
(3.) The aforesaid provision goes to show that at the time of setting aside the decree under Order IX, Rule 13 of the Code of Civil Procedure, the learned Civil Judge is competent to impose such terms as to costs, payment into court or otherwise as it thinks fit but in the instant case, it is apparent that the application under Order IX, Rule 13 of the C.P.C. has not been decided and the condition of depositing half of the amount of the decree passed in a suit for mandatory injunction, has been imposed for staying the execution of the decree.;