- (1.) N. L. Ganguly, J. This civil revision is directed against the order dated 17. 10. 92 passed by the IInd Addl. Civil Judge, Saharanpur by which the court below allowed the application under Order IX, Rule 13 read with Section 151 C. P. C. with the condition that the applicant in case deposited half of the en tire amount decreed within 30 days, in case of default in depositing the amount within the period, the application 4c for restoration shall stand auto matically dismissed and the decree and judgment dated 11. 5. 92 would become effective.
(2.) THE court was pleased to direct the revisionist to serve the respondent so that they may file a counter affidavit. THE respondent has filed counter af fidavit and Sri Shekhar Srivastava filed appearance on their behalf. The short and important question for consideration in this civil revision is that whether the court below was legally correct in imposing a con dition of depositing of 50% of the decretal amount passed ex parte. The learned counsel for the applicant-revisionist submitted that admittedly proper ties worth more than Rs. 10 lacs had already been equitably mortgaged in favour of the plaintiff-Bank, the claim of the Bank is secured much more than required by the said mortgage. There was no justification or legal necessity to impose the condition for depositing the amount. The learned Counsel sub mitted that the condition imposed for setting aside the ex parte decree was arbitrary and illegal exercise of discretion and the condition imposed was onerous. Decision reported in 12 ALJ 1270 - Nand Lal v. Kishore and others. The Division Bench of this Court was considering a case where the court passed an order, set aside an order dismissing a suit for default on condition of the plaintiff paying a certain amount of damages to the defendant and provided in the same order that in the event of such payment, not being made, the ap plication should stand dismissed. The Division Bench arrived at a conclusion that the court had intended to and did completely dispose of the application for restoration of the suit and the order was, therefore, appealable. The learned Counsel for the respondent submitted that the court below had passed final orders dismissing the suit and in view of decision of 12 ALJ (supra) the civil revision is incompetent and appeal lay against such an order. The learned counsel placed reliance on AIR 1926 All. 142 (Ahmad Hussain Khan v. Ear Dial ). The learned Counsel for the applicant pointed out from the said decision that in case of Jagannath Sahi v. Kamta Prasad Upadhyaya, (1914) 36 ALJ 77, this Court had expressed opinion that a conditional order was not a proper form in which to pass the order and that an order should be made directing payment of money by a certain time and then a separate order passed restoring or declaring to restore the suit, according to as money had been paid or not. The learned Counsel for the applicant attempted to point out the error in the order of the court below but he has omitted to consider and look to the further observations of the Division Bench observing "however that may be, to prevent any misapprehension, we wish to lay down definitely that an order restoring a case dismissed for default on condition of the pay ment of reasonable amount of cost to the opposite party within a time fixed by the order is not illegal order but on the contrary is an order contemplated by Order IX, Rule 13. This authority is not of any assistance to the revisionist. In the suit at hand, the decree was passed by the court below and at the instance of the defendant on the application for setting aside the decree passed, the court had imposed the condition for depositing the half of the decretal amount. This was a case on a different footing. The court per haps considered it necessary for securing the claim of the decreeholder and put the condition as stated above. The learned Counsel for the revisionist cited AIR 1936 All. 177 (Gaya Deen v. Lalta Prasad and another ). The Division Bench was considering an application for restoration of a suit dismissed in default under Order IX, Rule 13, C. P. C. and the order for restoring the suit dismissed in default on condition of payment of cost to the opposite party within a particular time was held to be a just and correct order. The court below in the said case had declined to extend time for payment of the cost as indicated in the original order. The Division Bench was of the view that the court ceased in the matter and cannot extend the period for payment under Section 148, C. P. C. This authority is also of no assistance to the revisionist.
(3.) THE learned Counsel for the applicant Sri P. N. Saxena relied on a single Judge decision reported in All 1979 All. 370 - Raj Kumar Soni v. M/s Mohan Mekin Brewaries Ltd. THE learned Counsel for the applicant submitted that the learned Single Judge in 1979 All 370 (supra) was pleased to hold that unless a party at fault, normally no condition should be imposed for pay ment of money or imposing of the security while setting aside the ex parte decree. THE learned Counsel Sri P. N. Saxena has not appreciated the further observations of the court which held in para 7. This Court held that although there was ample power in the court to order the payment of money into court, as well as cost as a condition for setting aside the ex parte decree but set aside the term of depositing into court imposed by the court below on the ground that the condition imposed was unreasonable. In the said case, there was a finding recorded by this Court that the court below was satisfied from material on record that applicant had sufficient cause for not being present on the date the ex parte decree was passed. But nevertheless observed that l/5th of the decretal amount viz. Rs. 2 lacs be deposited within 60 days as a condition for restoring the suit. In 1979 All. 370 (supra), there was lack of knowledge and information of the date fixed. In the present case, the facts as shown in the impugned order shows 7. 5. 92 was the date fixed in the suit for defendant's evidence. The defendant No. 2 was at Dhanbad, Bihar and was ill. Defendant No. 3 Virendra Prasad Singh was looking after the pairovi of the case. On the date fixed, the counsel for the defendant absented and the case was directed to proceed ex parte. The order shows that the defendant was delaying in disposal of the suit, the revisionists were not absent on 5. 7. 92 and 11. 7. 92, the order of the court below was passed in presence of the Advocate of the defendant-revisionist. The court below found that the proceedings were under Order XVII, Rule 2. On the date fixed, Sri Madhur Shyam, Advocate was present in the court and on the date fixed, instead of producing the witness moved an application for adjournment that the defendant had not returned from Dhan bad and in absence the evidence could not be adduced. The Court found as a fact that the revisionist had been attempting to delay the proceeding and in these circumstances for giving one opportunity to the revisionist, so that the suit may be finally decided passed the order of restoration imposing the con dition. The decision of 1979 cited by the learned Counsel has no application to the fact of the present case.;