Case Note & Summary
The dispute arose from a suit for possession of property filed by the respondent, who was the mother-in-law of the appellant. The appellant and her husband were unable to live amicably in their matrimonial tie, and divorce proceedings were pending. The appellant was in possession of the property, and the respondent filed the suit for possession based on her alleged title. The appellant was set ex parte in the suit. Subsequently, an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 was filed seeking to set aside the ex parte decree, and this application was pending before the Delhi High Court. By order dated April 16, 1996 in I.A. No.8629/95 in Suit No.3781/90, the High Court, while disposing of the application for restoration of the decree, directed the appellant to deposit and continue to deposit mesne profits at the rate of Rs.2,000 per month from the date of the ex parte decree. Aggrieved by this condition, the appellant approached the Supreme Court by special leave. The core legal issue before the Supreme Court was whether the imposition of such a condition to deposit mesne profits from the date of the ex parte decree, and to continue depositing as a precondition to contest the application under Order 9 Rule 13 CPC, was valid. The appellant contended that the condition was onerous and invalid, particularly because the parties were closely related and the matter had been disposed of ex parte. The Supreme Court observed that the parties were closely related and the matter had been disposed of ex parte. The Court held that it was not a fit case to impose costs of depositing mesne profits from the date of the ex parte decree and to continue to deposit it as a condition to contest the application to set aside the ex parte decree. The Court further held that such an onerous condition was not valid, though discretionary. Accordingly, the Supreme Court set aside the impugned order of the High Court, granted stay of execution of the ex parte decree, and remitted the matter to the High Court for fresh consideration of the application for setting aside the decree on merits and in accordance with law. The appeal was allowed with no order as to costs.
Headnote
A) Civil Procedure - Setting Aside Ex Parte Decree - Order 9 Rule 13, Code of Civil Procedure, 1908 - The High Court directed the appellant to deposit and continue to deposit mesne profits at Rs.2,000 per month from the date of ex parte decree as a condition to contest the application for setting aside the ex parte decree. The Supreme Court held that such onerous condition was not valid, though discretionary, especially when the parties were closely related and the matter had been disposed of ex parte; the impugned order was set aside and the matter remitted to the High Court for fresh consideration on merits.
Issue of Consideration
Whether the condition imposed by High Court directing deposit and continued deposit of mesne profits from date of ex parte decree as precondition to contest application under Order 9 Rule 13 CPC was valid.
Final Decision
The impugned order of the High Court is set aside. There shall be stay of execution of the ex parte decree. The matter is remitted to the High Court for fresh consideration of the application for setting aside the decree on merits and in accordance with law. The appeal is allowed with no order as to costs.
Law Points
- Condition imposed on party seeking to set aside ex parte decree must not be onerous
- Deposit of mesne profits as precondition to contest Order 9 Rule 13 application not valid
- Discretionary condition must be exercised judiciously considering close family relationship and ex parte nature of decree
