Andhra HC (Pre-Telangana)
Rajeswara Industries, A Partnersip ... vs State Bank Of Hyderabad, Karimnagar ... on 10 April, 1991
Equivalent citations: 1991(2)ALT365
JUDGMENT Jagannadha Rao, J.
1. The C.M.A. and C.R.P. are connected. The C.M.A. is filed against the order dated 10-8-1989 passed in I.A. No. 40/89 in O. S. No. 5/87 on the file of the Subordinate Judge. Karimnagar, dismissing the stay application filed by the appellant on the ground that the conditions imposed by the Court on 12-6-1989 have nut been complied with C.R.P. No. 2265/89 is filed by the appellant in the C.M.A. against the earlier order dated 12-6-1989 in 1. A. No. 40/89 imposing conditions for entertaining the application field by the petitioner under Order IX Rule 13 of the Code of Civil Procedure.
2. What happened here was that the respondent-Bank filed a suit O. S. No. 5/87 on the file of Subordinate Judge's Court, Karimnagar for recovery of money. An ex-parte decree was passed on 12-4-1989. The defendants then filed I.A. No. 40/89 under Order IX Rule 13 C.P.C. forgetting aside the same. They mentioned various grounds to establish sufficient cause or their part for setting aside the ex parte decree. Even before the learned Subordinate Judge took up the I.A. for consideration, he passed the interim order dated 12-6-1989 directing the defendants to deposit the costs as well as half of the suit amount as a condition precedent for entertaining the said I.A. filed under Order IX Rule 13 C.P.C. As the defendants failed to comply with the said conditions, the learned Subordinate Judge passed the order on 10-8-1989 rejecting the said I.A. filed under Order IX Rule 13 C.P.C. Aggrieved by these two orders the defendants have filed the abovementioned C.M.A. and C.R.P. as stated above.
3. Under Order IX Rule 13 C.P.C., in any case in which a decree is passed exparte against the defendant, he may apply to the Court by which the decree was passed for an order to set it aside; if he satisfies the Court that the summons was not duly served, or that he was prevented by sufficient cause from appearing when the suit was called on for hearing, the court shall pass an order setting aside the decree as against him upon such terms us to costs, payment into the Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. The Rule contains two other provisos which are not material in the proceedings before us.
4. From a reading of the aforesaid provision of Order IX Rule 13, C.P.C. it is clear that the court shall make an order setting aside the decree if sufficient cause is established, upon such terms as to costs, payment into the Court of otherwise as it thinks fit. But the court cannot, even before going into the merits of the application filed under Order IX Rule 13, C.P.C impose conditions upon the defendants for depositing the costs or part or whole of the suit amount as a condition precedent for entertaining the said I.A. under Order IX Rule 13 The law in this behalf is well settled more than 50 yeas ago in Narayanan v. Chidambaram, AIR 1940 Mad. 585. There a Division Bench of the Madras High Court consisting of Burn and Lakshmana Rao, JJ. held that the court had no power to order pending trial of an application under Order IX, Rule, 13, C.P.C. the defendants to deposit the costs of the suit or furnish security for the decretal amount. Following the aforesaid decision, we allow the above C.M.A. and C.R.P.
5. It is however argued for the respondent-Bank that some conditions may be imposed by this Court while disposing of the C.R.P. and C.M.A, We are afraid, we cannot do what according to us the court below should not have done before considering the I. A. on the ments. It is however open to the lower court after dealing with the merits of the I.A. to act in accordance with the provisions of Order IX, Rule 13 C.P.C. and pass such orders as it deems fit and proper.
6. For the aforesaid reasons, the C.M.A. and C.R.P. are both allowed and the I.A. No. 40/89 is restored to file and the learned Subordinate Judge. is directed to entertain the said I.A. on merits without imposing any conditions and dispose of the said I.A. on merits within two months from the date of receipt of this order, in accordance with the provisions of Order IX, Rule 13, C.P.C. No order as to costs.