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2001 DIGILAW 1126 (AP)

S. Guru Murthy v. R. Lakshmana Rao

2001-09-27

L.NARASIMHA REDDY

body2001
L. NARASIMHA REDDY, J. ( 1 ) THE defendants in O. S. No. 442/97 are the petitioners in this Civil Revision Petition (CRP ). The suit was filed by the respondent/ plaintiff for recovery of certain amounts in the Court of the II Additional Senior Civil judge, Visakhapatnam. The petitioners filed the written statement. However, during the subsequent proceedings, they remained absent. Consequently the trial Court decreed the suit ex parte on 10-2-1999. ( 2 ) THE petitioners filed IA. 210/99 under order IX Rule 13 CPC. The trial Court dismissed the said IA through orders dated 12-8-1999. Aggrieved by the same, the petitioners filed CMA. No. 40/99 in the Court of the II Additional District Judge, visakhapatnam. The lower appellate Court on having been satisfied about the reasons, for the petitioners or their Counsel not being present on 10-2-1999, set aside the exparte decree through its order dated 8-11-99. However, while setting aside the ex parte decree, the lower appellate Court imposed a condition that the petitioners shall deposit 3/4ths of the decretal amount as well as costs. The petitioners are aggrieved by this condition and the same is challenged in this crp. ( 3 ) SRI P. Satyanarayana, the learned counsel for the petitioners, submits that once the lower appellate Court was satisfied about the genuineness of the reasons on account of which the petitioners and their counsel were not present in the Court, it ought to have simply set aside the ex parte decree and imposition of condition to deposit 3/4ths of the decretal amount is beyond the scope of the powers of the Court under order IX Rule 13 CPC. ( 4 ) ON the other hand, the learned Counsel for the respondents Sri Kurma Rao submits that the condition imposed by the lower appellate Court cannot be said to be illegal and it is imposed to compensate the hardship to which the respondent was subjected to, on account of the indifference exhibited by the petitioners. ( 5 ) THE facts of the case are not in dispute and are borne out of the record. The only question that has to be examined is as to whether the trial Court or for that matter the appellate Court, while setting aside the ex parte decree, is entitled to impose a condition of deposit of part of the decretal amount. The only question that has to be examined is as to whether the trial Court or for that matter the appellate Court, while setting aside the ex parte decree, is entitled to impose a condition of deposit of part of the decretal amount. In a way, setting aside the ex pane decree and ordering deposit of part of the decretal amount are contradictions in terms. Once the ex parte decree is set aside, there is no decree in the eye of law. Directing deposit of part of the decretal amount presupposes the existence of the same decree which is set aside. ( 6 ) ADVERTING to the scope and ambit of the power of the Courts to impose such conditions while exercising jurisdiction under Order IX Rule 13 of CPC, this court in its decisions in V. Kasturi Bai v. P. Varalakshmi and Budati Rajendra prasad v. Kolamudi Ramachandra Rao had taken the view that such conditions are not contemplated and in fact are beyond the scope and ambit of Order IX Rule 13 of cpc. Following the same, the condition imposed by the lower appellate Court directing deposit of 3/4ths of the decretal amount is set aside. However, the petitioner shall deposit the costs and also pay an amount of Rs. 1,000. 00 towards costs to the learned Counsel for the respondent in this crp. Accordingly, the CRP is allowed to the extent indicated above. No costs.