Andhra HC (Pre-Telangana)
S. Guru Murthy And Anr. vs R. Lakshmana Rao on 27 September, 2001
Equivalent citations: 2001(1)ALD524, 2001(6)ALT655, 2002 A I H C 741, (2002) 1 CIVILCOURTC 658, (2001) 6 ANDHLD 524, (2002) 2 ICC 24, (2001) 6 ANDH LT 655, (2001) 2 ANDHWR 521
ORDER
1. The defendants in OS No. 442/97 are the petitioners this Civil Revision Petition (CRP). The suit was filed by the respondent/plaintiff for recovery of certain amounts in the Court of the III 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 exparte 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 exparte decree, the lower appellate Court imposed a condition that the petitioner shall deposit 3/4th 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 Court, it ought to have simply set aside the exparte decree and imposition of condition, to deposit 3/4th 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 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 exparte decree, is entitled to impose a condition of deposit of part of the decretal amount. In a way, setting aside the exparte decree and ordering deposit of part of the decretal amount are contradictions in terms. Once the exparte 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. 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, 1983 (1) APLJ 305 and BUDATI RAJENDRA PRASAD v. KOLAMUDI RAMACHANDRA RAO, 1997 (6) ALD 755, 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 3/4th of the decretal amount is set aside. However, the petitioner shall deposit and also pay an amount of Rs. 1,000/- towards costs to the learned Counsel for the respondent in this CRP. Accordingly, the CRP is allowed to the extent indicated above. No costs.