M/s Mekin Agro Products Pvt. Ltd. and Another vs Union Tractor Workshop

Sanjay Kishan Kaul, J.

is No. 514 and 515/2001

These are two applications for exemption from filing certified copies of the orders and pleadings.

The applications are allowed subject to just exceptions.

FAO (OS) 209/2001 and CM 514/2001

The appellants have filed the present appeal against the order dated 4.5.2001 of the learned single Judge, imposing a prior condition of deposit of the decretal amount before hearing the application.

The respondent has filed a suit for recovery of a sum of Rs.7,00,000/- Along with interest against the appellants for breach of contract and damages. The appellants initially entered appearance in the suit but subsequently stopped appearing and were proceeded ex-parte by order dated 28.1.99. The respondent led evidence by way of affidavit and subsequently the suit of the respondent was decreed for the amount of Rs.7,00,000/- Along with pendente lite and future interest of 15% p.a.

The appellants filed an application is No. 4390/2001 under order 9 rule 13 read with section 151 of the CPC (hereinafter referred to as the Code) stating therein that they had entrusted the matter to their advocates and had filed the written statement but subsequently the counsel for the appellant stopped appearing and did not inform about the same to the appellants. The appellants further claimed that since they were not satisfied with the services rendered by their earlier counsel, they engaged new counsel to inspect the suit record. It was when noticed that decree had been passed against them. Soon thereafter they took steps for seeking return of file from their earlier counsel and moved the application to set aside the decree. By the impugned order learned single Judge imposed a condition precedent of deposit of the decretal amount for bearing of the said application.

As the impugned was passed without notice to the opposite party, no notice is required to be issued to the Respondent. We have heard learned counsel for the appellants, who contends that the impugned order is not in accordance with law in as such much as the condition of the pre-deposit of the decretal amount cannot be imposed even without considering the merits of the application filed under order 9 rule 13 of the code.

The learned counsel sought to rely upon the judgment of the Division Bench of this court in Mr. D. Kochhar Vs. Canara Bank and others, and two other judgments, Kunj Behari Lal alias Kunji Lal Vs. Kashi Prasad, and P. Lakshminarasimham Pantulu Garu Vs. Sree Sree Ramachandra Mardaraja Deo Garu (Minor by Guardian, The Collector of Ganjam, the Defendant Legal Representative), in support of his submissions. The ratio of all three judgments is identical that a judgment debtor cannot be called upon to furnish security or deposit the amount before considering the prayer for setting aside of the ex-parte decree under order 9 rule 13 of the code. No doubt court is free to impose terms and conditions on a defendant/judgment debtor at the time of disposal of the application under order 9 rule 13 of the code.

We are thus of the view that the pre-condition of deposit of the decretal amount to hear the application under order 9 rule 13 of the Code is not sustainable and consequently the impugned order dated 4.5.2001 is set aside. The appeal is allowed.

Appellants are directed to appear before the learned single Judge on 11th July, 2001. Learned single Judge will proceed to decide the application of the appellants under order 9 rule 13 of the code in accordance with law.