D.K.Seth, J. - (1.) In the present case, an application under Order IX. Rule 13 was allowed by setting aside ex parte decree passed in Suit No. 634 of 1988. Against the said order dated 30.9.1995 passed by learned Additional Civil Judge (S.D.), 1st Court, Dehradun in Misc. Case No. 93 of 1991 arising out of the said suit, a revision being Civil Revision No. 140 of 1995 was preferred. The revisional court had allowed the revision while modifying the order dated 30.9.1995 and directed for furnishing bank guarantee in respect of half of the decretal amount to the satisfaction of the learned trial court, a condition precedent for allowing the application under Order IX, Rule 13.
(2.) This order has been challenged by Mr. K.K. Arora, learned counsel for the petitioner, on the ground that Order IX. Rule 13 though contemplates of terms as regards to cost or payment into Court or otherwise, but it never contemplates of furnishing security to secure the decretal amount. According to him, the term qualifies cost only. Payment into Court or otherwise qualifies the cost indicating as to whether the cost shall be paid to the Court or otherwise. Therefore, when the said provision has not referred to furnishing security or depositing decretal amount, in that event, it cannot be said that the Court has jurisdiction to give any such direction.
(3.) Mr. Arora, had relied on a decision rendered by learned single Judge of this Court in Raj Kumar Soni v. M/s. Mohan Meakin Breweries Ltd., AIR 1979 All 370, where it has been held that the direction for depositing l/5th of the decretal amount while setting aside ex parte decree was not justified though the Court could have asked for deposit of cost if the defendant was found to be at fault. This judgment was also referred to in the decision in the case of M/s. Modern Fuel Industry, Saharanpur and others v. Indian Bank, Saharanpur, 1991 (1) ALR 587, and has been distinguished to the extent that even decretal amount can be directed to be deposited while setting aside ex parte decree, on the analogy that the term related to the cost as well as payment into the Court or otherwise. Payment into Court or otherwise did not qualify the cost. On the other hand both cost, payment into Court or otherwise qualifies the term. Thus, it apparently appears that the two learned single Judges have taken two different views. Mr. Arora relying on these two, decisions contends that since there are two judgments taking two different views, therefore, this matter should be referred to a larger Bench. He also contends that the question is dependent on the merits of the case inasmuch as if the defendant is found to be at fault, then only such cost could be imposed. Even assuming that the decretal amount could be directed to be deposited, it is only when the Court comes to a finding that the defendant was at fault. Without any such finding, such condition cannot be imposed. He also draws my attention to the facts of the case and submitted that none of the Courts below have come to a finding that the defendant was at fault.;