S.A.K. Mynoddin vs Margadarsi Chit Fund Ltd. and Others

L. Narasimha Reddy, J.—Defendant No. 1 in O.S. No. 3447 of 2002, in the Court of the III Junior Civil Judge, City Civil Court, Hyderabad, is the petitioner. The first defendant filed the suit for recovery of a sum of Rs. 94,005/-, against the petitioner and three others. The liability is traceable to a chit transaction. While the petitioner is the subscriber, respondents 2, 3 and 4 are sureties.

On receiving the summons in the suit, the petitioner engaged an Advocate and filed the written statement. However, the suit came to be decreed on 2.9.2003. The petitioner filed I.A. No. 314 of 2004, under Order 9 Rule 13 C.P.C., stating inter alia that he went to Giddalur in Prakasam District, to attend upon his ailing mother. It was pleaded that he could not instruct his Counsel properly, and in the meanwhile, the decree came to be passed. He stated that he came to know about the decree only when a Bailiff came to him in the process of execution of the decree. Since there was delay in filing the application, he filed a petition u/s 5 of the Limitation Act.

The trial Court ordered I.A.No. 314 of 2004, through the docket order dated 18.3.2005, on condition that the petitioner shall deposit half of the suit amount. The petitioner feels aggrieved by the condition.

Heard the learned Counsel for the petitioner and the learned Counsel for the first respondent.

The revision arises out of an order passed by the trial Court in an application filed under Order 9 Rule 13 C.P.C. Basically, this Court is not satisfied with the nature of disposal given by the trial Court to the application. Whenever an ex parte decree is passed, a right accrues to the decree holder. If an application is filed by the defaulting defendant, the Court is required to address to the various facts pleaded therein. The reason is that the extent of satisfaction of the Court, in this regard, would have a bearing on the nature of conditions that are required to be imposed. If the explanation offered by the party is satisfactory, the ex parte decree may have to be set aside unconditionally. On the other hand, if any lapse is found on the part of the concerned defendant, either the application has to be rejected, or the decree has to be set aside, by imposing certain conditions. The nature of conditions, in turn, would depend upon the extent of lapse on the part of the defendant.

Except stating that the petitioner engaged an Advocate and filed vakalat, nothing was discussed by the trial Court. The entire order of the trial Court reads as under:

"Heard both sides. The petitioner engaged advocate and filed vakalat, so at this stage, the petitioner is aware with the suit. Therefore, the petitioner is directed to deposit 1/2 of the suit amount on or before 12.4.2005, failing which the petition stands dismissed. Call on 12.4.2005".

This hardly constitutes a satisfactory disposal, in the context of setting aside an ex parte decree, or for imposition of condition. It is quite possible that the trial Court was under pressure of work. But before a defendant is burdened with a decree for payment, ahead of the actual adjudication, little more attention is required.

The petitioner promptly responded to the summons in the suit, engaged an Advocate and filed his written statement. His absence at the relevant point of time was on account of the illness of his mother who is at a far off place. The trial Court did not make any observation that the plea of the petitioner is unbelievable. In such an event, there cannot be any justification to burden the petitioner by requiring him to pay half of the decretal amount.

The uncertainty that existed, as to the competence of the Court to impose conditions directing deposit of part of the decretal amount, while allowing the application under Order 9 Rule 13 C.P.C., was set at rest by the Supreme Court in its judgment in Ramesh v. Ratnakar Bank Ltd., AIR SCW 4759 . This was followed by a Division Bench of this Court in Vakati Prabhakar Reddy Vs. Tenali Mohan Rao, . Such a power was conceded by Courts, but a note of caution was added to the effect that much would depend on the nature of the default that was found on the part of the defendant.

Taking the totality of the circumstances into account, the C.R.P. is partly allowed, and the order under revision is modified to the extent that the ex parte decree passed against the petitioner shall stand set aside, on condition that he deposits a sum of Rs. 20,000/- (Twenty thousand only), to the credit of the suit, within a period of four weeks from today. On such deposit, the first respondent shall be entitled to withdraw the same, without furnishing any security. There shall be no order as to costs.