K EBRAHIM AND CO Vs. I VENKATACHALAMAYYA
HIGH COURT OF ANDHRA PRADESH
K.EBRAHIM AND CO.
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(1.)The respondent in this Civil Revision Petition filed a suit O.S.No.14 of 1991 on the file of the Subordinate Judge, Tenali against the petitioner herein for recovery of some money. In the said suit, the petitioner-defendant was set ex parte, and ex parte decree was passed and the respondent-plaintiff filed a petition to execute the said decree. Then, the petitioner filed an application under Or. IX, Rule 13 C.P.C. seeking to set aside the ex parte decree. As there was some delay in filing that application, he filed an application under Section 5 of the Limitation Act to condone the dealy. As the execution is pending, the petitioner filed an application under Section 151 C.P.C. to stay further proceedings in the execution petition. The lower Courtallowed that application granting stay of execution on condition of the petitioner depositing into court costs awarded in the suit and also half the decretal amount The petitioner filed this Revision aggrieved by the order of the lower Court imposing condition regarding the deposit of suit costs and half the decretal amount.
(2.)The learned counsel for the petitioner contends that the condition imposed by the lower Court is onerous and the Court has no power to impose such a condition. For this, the learned counsel has referred to a Division Bench decision of this Court in Rajeswara Industries vs. State Bank of Hyderabad.
(3.)In the aforesaid decision what has happened was when the defendant filed an application under Or.IX, Rule 13 C.P.C. to set aside the ex parte decree, the court even before numbering the application imposed a "condition that he should deposit the costs as well as half of the suit amount as a condition precedent for entertaining the said petition and as he failed to fulfil the condition, the application was dismissed. The Division Bench held that the Court cannot even before going into the merits of the application filed under Or.IX, Rule 13 C.P.C. impose condition upon the defendants for depositing the costs or partor whole of the suitamount as a condition precedent for entertaining the said Interlocutory Application under Or.IX, Rule 13 CPC.
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