MITHU LAL Vs. CHUNNI KUNWAR

JUDGEMENT

(1.) This is a revision by the defendant. The plaintiff had filed a suit for arrears of rent and ejectment. The suit was decreed ex parte. Thereafter the defendant applied for setting aside the ex parte decree. In order to comply with the provisions of Section 17 of the Small Cause Courts Act he obtained permission from the trial Court for furnishing security for the decretal amount. The defendant furnished the security demanded, and the restoration application was thereafter considered on merits. The trial Court passed an order the relevant portion of which runs as under :-

(2.) Thereafter the defendant made an application on 29th July 77 stating that the decretal amount had been deposited and a further amount of Rs. 230/- had also been deposited. According to defendant the total amount deposited covered the decretal amount and the rent due up to the 26th Aug., 1977. The prayer was that the earlier order directing deposit of the decretal amount in cash be modified and the amounts deposited be treated as full compliance of the order passed by the Court. The trial Court, however, recalled the earlier order passed under Order 9, Rule 13, and dismissed the application under Order 9, Rule 13 on the view that the defendant had failed to deposit the entire decretal amount which consisted of Rs. 900/- towards rent and Rs. 335/towards cost. The revision filed, failed. In the present case it appears that no written statement had been filed on behalf of the defendant by the time that application under Order 9, Rule 13 was disposed of. Since the suit was decreed ex parte by the Small Causes Court the defendant had to comply with the proviso to Section 17, before the application for setting aside the ex parte decree could be entertained. The proviso prohibits entertainment of an application for setting aside the ex parte decree unless the defendant has either deposited in Court the amount due from him under the decree in accordance with directions obtained from the Court in this behalf. In the present case the defendant did not deposit the decretal amount but complied with the direction of the Court for giving security. Thus, the application moved by the defendant for setting aside the ex parte decree could have been entertained by the trial Court, Order 15, Rule 5, C. P. C. was also out of the way as the defendant had not filed his written statement, and as such, the question of striking off his defence did not arise at the stage when the application under Order 9, Rule 13 was made. This apart under Order 15, Rule 5 as it stood only the rent admitted by the defendant had to be deposited, and in the present case the defendant had deposited the rent admitted by him to be due. The next question is as to whether the application under Order 9, Rule 13 could be dismissed on the ground that the defendant had not complied with the conditions imposed by the trial Court for setting aside the ex parte decree. The order setting aside the ex parte decree has already been extracted. Counsel for the plaintiff urged that the condition regarding de- posit of the decretal amount had to be fulfilled by the defendant before the ex parte decree could be set aside. It is settled that a Court may make a conditional order for setting aside a decree, and the condition imposed may be one for deposit of the decretal amount. The question, however, is as to whether the present order is such a conditional order, I am of the view that the direction regarding deposit of the decretal amount was not a condition for setting aside the ex parte decree. The order imposed only one condition and that was as to costs. The defendant had complied with that order. This being so, the trial Court acted without jurisdiction in dismissing the application under Order 9, Rule 13, as the defendant had fully complied with the condition imposed for setting aside the ex parte decree.

(3.) The revision is allowed with costs. The stay order is vacated.