Case Note & Summary
This matter arose from a civil suit filed by the respondent against the State of Orissa and others for recovery of Rs.1,46,820. The suit was decreed ex parte. The appellants, who were the defendants in the suit, filed an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908, to set aside the ex parte decree. The trial court allowed that application and set aside the ex parte decree subject to payment of costs of Rs.50. The respondent challenged this order by filing Civil Revision No. 694 of 1991 before the High Court. By order dated January 8, 1992, the High Court allowed the revision, set aside the trial court's order, and directed the appellants to deposit the entire decretal amount and also costs of Rs.7,500 as a condition for setting aside the ex parte decree. The State of Orissa then appealed to the Supreme Court by special leave. The core legal issue was whether the High Court, while exercising revisional jurisdiction, could impose a condition of depositing the decretal amount with costs of Rs.7,500 as a prerequisite for setting aside an ex parte decree under Order 9 Rule 13 CPC. A related issue concerned the scope of the appellate court's power under Order 41 Rule 1(3) CPC to require deposit of the disputed amount in money decrees and whether that power could be exercised in revision. The appellant State argued that the High Court exceeded its jurisdiction by directing deposit of the entire decretal amount and costs. The State also explained that lapses occurred because no individual officer took responsibility, and requiring such a heavy deposit would jeopardize public justice. The respondent's arguments were not recorded in the judgment. The Supreme Court observed that Order 41 Rule 1(3) CPC provides that where an appeal is against a decree for payment of money, the appellant shall deposit the amount disputed in the appeal or furnish security as the appellate court may allow. The Court noted that this provision applies when an appellate power is exercised on an appeal filed against a decree of the trial court, and in such cases the court exercises judicial discretion to grant conditional stay of execution of a money decree based on the facts. However, in the present case, there was no appeal before the High Court against the ex parte decree; rather, the trial court itself had set aside the ex parte decree subject to payment of Rs.50. When the matter came before the High Court in revision, the High Court properly considered the facts to set aside the ex parte decree, but it could not exceed its jurisdiction by directing the appellant to deposit the entire decretal amount and also costs of Rs.7,500. The Court accepted the State's explanation that no one took responsibility for the lapses and that ultimately public justice would be jeopardized if the condition was upheld. Accordingly, the Supreme Court allowed the appeal, set aside the High Court's order, and restored the trial court's order setting aside the ex parte decree subject to payment of Rs.50. No costs were awarded.
Headnote
A) Civil Procedure - Setting Aside Ex Parte Decree - Condition of Deposit of Decretal Amount - Code of Civil Procedure, 1908, Order 9 Rule 13 and Order 41 Rule 1(3) - The High Court, in exercise of revisional jurisdiction, could not direct the appellant to deposit the entire decretal amount and costs of Rs.7,500 as a condition for setting aside an ex parte decree when the trial court had already set aside the decree subject to payment of Rs.50. The Supreme Court held that Order 41 Rule 1(3) CPC, which empowers an appellate court to require deposit of money in an appeal against a money decree, did not apply to a revision; the High Court's order exceeded its jurisdiction and was set aside while the trial court's order was restored. (Paras 1-2)
Issue of Consideration
Whether the High Court, in exercise of revisional jurisdiction, could direct the appellant to deposit the decretal amount with costs of Rs.7,500 as a condition to setting aside an ex parte decree under Order 9 Rule 13 of the Code of Civil Procedure, 1908.
Final Decision
The appeal was allowed; the order of the High Court was set aside and the order of the trial court was restored; no costs were awarded.
Law Points
- High Court in revision cannot direct deposit of entire decretal amount and costs as condition to set aside ex parte decree
- Order 41 Rule 1(3) CPC applies to appeals not revisions
- trial court's order setting aside ex parte decree subject to Rs.50 cost restored
