LAKSHMI OIL CO Vs. AGGARWAL OIL COMPANY

JUDGEMENT

(1.) The present petition is directed against the order dated the 10th April, 1973, passed by the learned trial court declining stay of execution of an ex-parte money decree during pendency of an application under Order Rule 13 read with section 151 of the Code of Civil Procedure, which application was filed on the ground that the defendants were never served in the suit wherein the ex-parte decree was passed.

(2.) The suit was filed for the recovery of Rs. 3894.43 P. against the petitioners and it is alleged by the petitioners that summons were directed to be issued to the defencants for 10th March, 1971. In the meanwhile on 2nd of February, 19/1, an application was filed for amendment of the plaint to give description of defendant No. 1 as a registered firm and of petitioners Nos. 2 and 3 as partners of defendant No. 1. On 10th March, 1971, it is further alleged that without service of the said application on the defendants, the amendment was allowed and none of the defendant has been served. The notice was again directed to be issued for 19th April, 1971. It is further alleged that on 19th April, 1971, a false report of refusal of service was made on behalf of defendants Nos. 1 and 3 and notices were directed to be issued to defendant No 2 only for 31st May, 1971, and thereafter for 28th July, 1971. On 28th July, 1971 the suit was dismissed for default of appearance. On an application of the plaintiff, it is alleged that the suit was restored on 5th August, 1971, and the Court directed the issued of notices for 9th September, 1971. It is alleged that on 9th September, 1971, defendant No. 2 was not served and no notice was issued to defendants 1 and 3 for the said date and the case was adjourned to 24th September, 1971 for service on defendant No. 7 only. It is further alleged that false report of refusal was made and on 24th September, 1971, the proceedings wire directed to be ex parte against all the defendants and the case was adjourned to 4th October, 1971, for ex parte evidence. On 4th October, 1971, ex-parte decree was passed. It is further alleged that the petitioner came to know about the suit when immovable property of defendent No. 1 at Karnal, was attached. On 29th May, 1971, an application was filed as stated above under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. Along with the application for setting aside the ex-parte decree, an application was also filed for ad interim stay of execution but during the disposal of the appli- cation for setting aside the exparte decree. The learned trial court, expressed no prima facie view one way or the other whether the service was at all effected; but it was contended by the counsel for the plaintiff respondent before the learned trial court that as a matter of law, the Court has no jurisdiction to entertain the stay application without deposit of the entire decretal amount and the reliance was placed on a judgment reported as Pamulapati Varadayya v. Kommareddi Chinnappareddi wherein it was held as under :

(3.) Mr. J. P. Gupta, learned counsel for the petitioner has argued that it cannot be said as a matter of law that before the stay is granted of the execution of the ex-parte of money decree, the decretal amount must be deposited in Court and without which stay cannot ' be granted by the court. It is also contended that even under Order 9 Rule 13, discretion is given to the trial court before setting aside the ex-parte decree to put the parties to terms such as payment into court or otherwise as it thinks fit of the decretal amount. It is submilted that this discretion has to be exercised by the Court in each case on the facts is and circumstances of that case to decide whether any condition and if so, what condition be put. There appears to be lot of force in the submission The trial court has relied on a decision of the Andhra Pradesh High Court reported as A.1.R. 1956 Andbra Pradesh, 64 (supra) which has got no application for stay ad interim pending application for setting aside the ex parte decree ; that is a decision which apptis to an application for stay of a money decree and stay being applied before theappellate court. It is an established practice of this Court also that normally no stay is granted of execution in appeal from money decree except on special circumstances. It is clear from the wordings of Order 9 Rule 13 that when ex parte decree is to beset aside, condition may be imposed of costs or deposit of money but normally where the court decides to set aside the ex parte decree it can be done only where the conditions precedent to as mentioned therein are satisfied. If those conditions are satisfied normally it does not call for any condition being imposed. It was held by the Division Bench of the Rajasthan High Court in the case reported as Chhagan Rajand orhers v .Sugan Mal where the Division B inch consisting of K. N. Wanchoo C. J. (as he then was), and D. S. Dave, J., as under :