RAJENDRA KUMAR CHAUDHARY Vs. ASHARFI ALIAS MUNNI

JUDGEMENT

(1.) Mr. Sharad Malviya, learned counsel for the applicant has assailed the impugned order dated 22nd May, 1999 passed by the learned Additional District Judge, Moradabad in Misc. Case No. 25 of 1998 arising out of M.A.C. Case No. 9 of 1995 which was decreed ex parte on 13th November. 1998. The petitioner having filed an application for setting aside the ex parte decree, the same was registered as Case No. 25 of 1998 which had since been allowed by the impugned order dated 25th May, 1999 directing the petitioner to deposit half of the decretal amount in the Court within 30th May, 1999. In the said order, date 3rd July. 1999 was fixed for proceeding with the case. The restoration was subject to deposit of half of the decretal amount. Mr. Malviya has challenged that part of the order by which the order dated 25th May, 1999 was made conditional to the deposit of half of the decretal amount. He contends that the expression used in Order iX, Rule 13 does not contemplate deposit of the decretal amount. On the other hand, it contemplates payment of cost to the Court or otherwise. The expression 'upon such terms as to costs' is confined to the cost of the suit only. The phrase 'such terms as to costs' is to be read as a whole. The term relates to cost or in other words, the terms is qualified by the expression 'cost' and as such the term cannot include anything else other than cost. The phrase 'payment into Court or otherwise as it thinks fit', according to him, being preceded and followed by 'coma' means that it should be read independent of anything else and the expression 'or otherwise' qualifies only 'payment into Court' meaning thereby, the cost can be paid into Court or to the counsel or otherwise. The expression 'otherwise' does not qualify the expression 'terms'. Thus, according to him, the Court has no jurisdiction to direct deposit of the decretal amount. He next contends that once the ex parte decree is set aside, there is no decree in the eye of law and as such there cannot be any decretal amount in subsistence. Thus, there cannot be any question of depositing the decretal amount and that was the reason for which Order iX, Rule 13 had qualified 'terms' with the expression 'as to cost' which could be paid to the Court or otherwise. The expression so used does not contemplate any other meaning nor can it be conceived of any other interpretation. Alternatively, he also argues that the cost cannot be onerous in case the entire decretal amount is directed to be deposited in that event, it will amount, in fact, refusal to set aside the ex parte decree.

(2.) In as much as according to him, it would be too onerous to the defendant to get the benefit of setting aside of the ex parte decree, if he is required to deposit the entire decretal amount. Therefore, the Court has to take a judicial view even if, alternatively he argues that the decretal amount may represent the cost within the meaning of the expression 'term' used in Order iX, Rule 13. In support of his contention, Mr. Malviya had relied on the decision in the case of Madan Mohan v. Kanhaiya Lal, AIR 1933 All 601 ; Raj Kumar Soni v. Mohan Meakin Breweries Ltd., AIR 1979 All 370 and Life insurance Corporation of india v. Anjan Kumar Arora and others, AIR 1987 Cal 197, while seeking to distinguish in the case of M/s. Jagdamba General Store and another v. IIIrd Additional District Judge, Dehradun and others. 1998 13) ALR 274.

(3.) I have heard Mr. Malviya, learned counsel for the appellant at length.