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2001 DIGILAW 1175 (AP)

E. Seshagiri Rao v. E. Laxmi Tulasi

2001-10-04

S.B.SINHA, V.V.S.RAO

body2001
S. B. SINHA, CJ. ( 1 ) THIS revision petition is directed against an order dated 19-2-2001 passed by the Judge, Family court, Hyderabad in I. A. No. 2044 of 1999 in OS No. 118 of 1998 whereby and whereunder the following direction was given. Heard the petition is allowed subject to the conditions that the petitioner/defendant has to pay all the arrears at Rs. 1,500/- per month as per the ex parte decree and to pay maintenance till disposal of the suit at that rate and subject to the condition of filing of the written statement time extended for filing written statement and to pay all arrears by dated 30-4-2001 failing which the petition stands be dismissed on 30-4-2001, for non-compliance. Facts : ( 2 ) AN ex parte decree was passed against the petitioner. He filed an application to set aside the order purported to be under Order 9, Rule 13 of the Code of Civil Procedure whereupon the aforementioned impugned order has been passed. The learned Counsel appearing on behalf of the petitioner would contend that the condition imposed is onerous and unknown to law. The learned Counsel appearing on behalf of the respondent, on the other hand, would submit that having regard to the facts and circumstances of this case the condition imposed cannot be said to be onerous. Findings : ( 3 ) ORDER 9, Rule 13 of the Code reads thus :. . . . , the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. ( 4 ) A bare perusal of the said provision would clearly show that though the Court is entitled to impose some conditions for setting aside an ex parte order or decree, the same should not be treated to be execution of the decree itself. The very purpose for which an application for setting aside the ex parte decree is made would become frustrated if such an order is passed. We are, therefore, of the opinion that the impugned order cannot be sustained. However, by an order dated 25-4-2001 this court, while admitting the petition directed the petitioner herein to pay half of the arrears in one month and go on paying future maintenance. We are, therefore, of the opinion that the impugned order cannot be sustained. However, by an order dated 25-4-2001 this court, while admitting the petition directed the petitioner herein to pay half of the arrears in one month and go on paying future maintenance. Such an order was passed by way of interim maintenance. According to the learned Counsel the said condition has been complied with. But the learned Counsel on behalf of the opposite party, on the other hand, would submit that the entire amount has not been deposited. ( 5 ) KEEPING in view the facts and circumstances of this case we are of the opinion that the interest of justice would be subserved if the respondent herein is permitted to withdraw the amount deposited if not already withdrawn. So far as future interim maintenance is concerned, the respondent herein may file a separate application which may be considered on its own merits. However, having regard to the facts and circumstances of this case we would request the learned Judge, Family court, to consider the desirability of disposing of the matter as expeditiously as possible. The civil revision petition is accordingly disposed of. There shall be no order as to costs.