MODERN FEUL INDUSTRY SAHARANPUR Vs. INDIAN BANK

JUDGEMENT

(1.) N. L. Ganguly, J. This civil revision is directed against the order dated 17. 10. 92 passed by the IInd Addl. Civil Judge, Saharanpur by which the court below allowed the application under Order IX, Rule 13 read with Section 151 C. P. C. with the condition that the applicant in case deposited half of the en tire amount decreed within 30 days, in case of default in depositing the amount within the period, the application 4c for restoration shall stand auto matically dismissed and the decree and judgment dated 11. 5. 92 would become effective.

(2.) THE court was pleased to direct the revisionist to serve the respondent so that they may file a counter affidavit. THE respondent has filed counter af fidavit and Sri Shekhar Srivastava filed appearance on their behalf.

(3.) THE learned Counsel for the applicant Sri P. N. Saxena relied on a single Judge decision reported in All 1979 All. 370 - Raj Kumar Soni v. M/s Mohan Mekin Brewaries Ltd. THE learned Counsel for the applicant submitted that the learned Single Judge in 1979 All 370 (supra) was pleased to hold that unless a party at fault, normally no condition should be imposed for pay ment of money or imposing of the security while setting aside the ex parte decree. THE learned Counsel Sri P. N. Saxena has not appreciated the further observations of the court which held in para 7. This Court held that although there was ample power in the court to order the payment of money into court, as well as cost as a condition for setting aside the ex parte decree but set aside the term of depositing into court imposed by the court below on the ground that the condition imposed was unreasonable. In the said case, there was a finding recorded by this Court that the court below was satisfied from material on record that applicant had sufficient cause for not being present on the date the ex parte decree was passed. But nevertheless observed that l/5th of the decretal amount viz. Rs. 2 lacs be deposited within 60 days as a condition for restoring the suit.