Chekuri Malakondaiah v. State Bank of India, Kanigiri, represented by its Branch Manager
2013-09-23
C.V.NAGARJUNA REDDY
body2013
DigiLaw.ai
Judgment : 1. This Civil Revision Petition arises out of order dated 25-11-2010 in C.M.A.No.21/2010 on the file of the learned II Additional District Judge, Ongole, whereby she has confirmed order dated 29-6-2010 in I.A.No.36/2009 in O.S.No.10/2008 on the file of the learned Senior Civil Judge, Darsi. 2. I have heard Smt. Nandigama Revathi, learned counsel appearing for Sri Nimmagadda Satyanarayana, learned Counsel for the petitioners and Sri M. Srikanth Reddy, learned counsel appearing for Sri M. Narender Reddy, learned Standing Counsel for respondent No.1. 3. The petitioners are third parties to the above mentioned suit filed by respondent No.1 for recovery of mortgage amounts from respondent Nos.2 to 5. As respondent Nos.2 to 5 remained exparte, an exparte preliminary decree was passed on 20-8-2008. The petitioners who claim to have purchased the mortgaged property of respondent Nos.2 to 5 filed I.A.No.36/2009 under Order IX Rule 13 CPC to set-aside the exparte decree. The Court below by order dated 29-6-2010 allowed the said application, subject to the condition of the petitioners depositing the entire suit amount and costs. Feeling aggrieved by the said order, the petitioners carried the matter in appeal i.e., C.M.A.No.21/2010 which was also dismissed by the lower appellate Court by its order dated 25-11-2010. Questioning both these orders, the petitioners filed this Civil Revision Petition. 4. At the hearing, the learned counsel for the petitioners, submitted that though the trial Court has jurisdiction to impose reasonable conditions for setting aside the exparte decree, such conditions imposed are not to be onerous and harsh. She has submitted that the direction to deposit the entire suit amount with costs, is truly onerous and therefore, the order of the trial Court, as confirmed in the appeal, is not sustainable. In support of her submissions, the learned counsel placed reliance on the Judgment of the Supreme Court in V.K. Industries and others Vs. M.P. Electricity Board, Rampur ( (2002) 3 SCC 159 ). 5. The learned Counsel for respondent No.1 sought to oppose the above submissions and sustain the orders of the Courts below. 6. In V.K. Industries (1-supra), the Supreme Court, while recognizing the power of the Civil Courts to impose conditions while setting aside the exparte decrees, however, held that any such condition should be reasonable and not harshly excessive.
5. The learned Counsel for respondent No.1 sought to oppose the above submissions and sustain the orders of the Courts below. 6. In V.K. Industries (1-supra), the Supreme Court, while recognizing the power of the Civil Courts to impose conditions while setting aside the exparte decrees, however, held that any such condition should be reasonable and not harshly excessive. In that case, the High Court, while setting aside the exparte decree, directed the Judgment-debtor to deposit a sum of Rs.2 lakhs and also furnish Bank guarantee for the remaining suit claim of Rs.3,84,455-44 ps. The Court, while reducing the cash deposit to Rs.1 lakh, absolved the Judgment-debtors of their obligation to furnish the Bank guarantee. 7. The learned counsel for respondent No.1 sought to distinguish the Judgment in V.K. Industries (1-supra) from the present case by stating that the aggrieved parties in the case before the Supreme Court were Judgment-debtors while the petitioners herein are third parties. 8. In my opinion, the distinction sought to be placed by the learned counsel for respondent No.1 has no merit. This court is concerned with the principle of law, irrespective of whether the aggrieved party is a Judgment-debtor or a third party. The ratio that could be culled out from V.K. Industries (1-supra) discussed above is that the conditions to be stipulated by the Courts while setting aside exparte decrees “must be reasonable and not onerous or harshly excessive”. In the instant case, the suit claim is Rs.3,70,763/- along with interest. The direction to deposit the entire suit claim, in my opinion, is highly onerous and unreasonably excessive. Instead, interests of justice would be met if the petitioners are directed to deposit 50% of the suit claim excluding interest. 9. Accordingly, the orders of both the Courts below are modified by reducing the amount to be deposited by the petitioners to half of the suit claim, excluding interest. They shall make such deposit within a period of one month from today, failing which the exparte preliminary decree will stand confirmed. 10. Subject to the above modification, the Civil Revision Petition is disposed of. 11. As a sequel to the disposal of the Civil Revision Petition, CRPMP Nos.6025/2011 and 7478 of 2012 are disposed of as infructuous.