R RAMA RAO Vs. V VENKATESWARLU AND BROS

JUDGEMENT

(1.) The defendant in the suit O.S.No.123 of 1987 on the file of the II Additional Subordinate Judge, Warangal is the petitioner in this C.R.P.

(2.) An ex parte decree was passed on 24-7-89. On coming to know of theex parte decree the petitioner herein filed I.A.No.618/89 under Or.9, Rule 13 CPC for setting aside the ex parte decree. The said application was dismissed by the learned II Additional Subordinate Judge, Warangal. Aggrieved by the same the defendant-petitioner herein preferred an appeal C.M.A. No.22/90 to the Additional District Judge, Warangal. The lower appellate court found that the suit summons were not served on the defendant. It therefore set aside the ex parte decree passed against the defendant, but imposed a condition mat the defendant shall deposit the costs of Rs.2,705/- and also a sum of Rs.15,000/- towards suit amount on or before 3-12-90. Aggrieved by the imposition of the condition of depositing Rs.15,000/- only, the above C.R.P. is filed.

(3.) It is submitted by Mr. V.S.R. Anjaneyulu, learned counsel for the petitioner that as the lower appellate court was satisfied mat the suit summons were not served, it is a case for setting aside the ex parte decree; he should not have imposed the condition of depositing Rs.15,000/- although the lower appellate court is justified in directing dposit of Rs.2,705/- towards costs. He relied upon a decision reported in Raj Kumar vs. Mohan Meakin Breweries wherein the Allahabad High Court held that while setting aside the ex parte decree, the court can always award costs to compensate the otherside for inconvenience and loss caused to the said party. "It is also clear where the court finds that the defendant is at fault or there was omission on his part or it was because of his act that there had been delay in the disposal of the case, the court may impose reasonable terms. It is not open to the court at any time to impose onerous terms. An order directing the party to deposit 1/5th of the decretal amount is not justified when the amount claimed in the suit is large one."