GOPAL AND CO Vs. K BALARAJAIAH SIDDIRAMULU

JUDGEMENT

(1.) The appellant is the defendant is O.S. No,21 of 1984 on the file of the learned Subordinate Judge's Court at Nizamabad and the respondent is the plaintiff who instituted the said suit for recovery of a sum of Rs. 59, 318-83 ps. with costs and future interest. That suit was decreed ex parte on 26-12-1988 as the defendant and his counsel were called absent. The defendant preferred I.A. No.78 of 1989 under Order 9 Rule 13 of the Civil Procedure Code for setting aside the paid exparte decreeof 26-12-1988. The learned Subordinate Judge, after hearing both sides, by his order dated 18-7-1989 set aside the ex parte decree on condition that the defendant should deposit half of the decretal amount and costs on or before 1-8-1989 and that "in case of failure to deposit on or before the said date", the LA. would stand dismissed.

(2.) The defendant approached this Court on 18-7-1989 by way of Civil . Miscellaneous Appeal No. 1109 of 1989. That C.M.A. was admitted on28-7-1989 and on the same day in C.M.P. No,10140 of 1989 this Court granted interim stay of all further proceedings pursuant to the said ex parte decree dated 26-12-1988 subject to the condition of his depositing Rs.10,000/- on or before 15-9-1989 in default of which the petition would stand dismissed. On a petition (C.M.P. No. 11542 of 1989) to vacate the interim order of stay, this Court, by order dated 5-9-1989, made the interim order absolute and permitted the respondent (plaintiff) to withdraw the sum of Rs.10,000/- after it was deposited, without furnishing security. Subsequently, on the petitions made by the defendant this Court granted further time for depositing Rs,10,000/- and also permitted him to deposit the same in instalments. It is now not in dispute that the defendant deposited the entire sum of Rs.10,000/- pursuant to the directions of this Court and that the same was withdrawn by the plaintiff.

(3.) When this matter came up before me on 16-12-1993 Mr. M. Chandra-sekhara Rao appearing for the respondent (plaintiff) took a preliminary objection that the C.M.A. was not maintainable in view of Clause (d) of Rule 1 of Order 43 C.P.C. whereunder an appeal is provided only from "an order under Rule 13 of Order IX rejecting an application (in a case Open to appeal) for an order to set aside a decree passed ex parts". He submitted that the learned Subordinate Judge allowed LA. No.78 of 1989 by setting aside the ex parte decree, though conditionally, granting time till 1-8-1989 to fulfil the condition and that if the said condition was not fulfilled on or before 1-8-1989 the said I.A. would stand dismissed. The appeal against the said order having been presented on 27-7-1989 itself, the learned Counsel contended mat it was not maintainable. He relied on the decision of this Court in Gadde Tirupathaiah vs. Ambadipudi Sundara Ramaiah. The learned Counsel appearing for the appellant (defendant) had not disputed that the proper remedy for the appellant was to approach this Court by way of Civil Revision Petition under Section 115 of the Civil Procedure Code, 1908 and not by way of an appeal under Order 43 Rule l (d) and he prayed that the Civil Miscellaneous Appeal should be treated as a revision petition under Section 115 C.P.C. In view of the same, I directed the Office to number the present C.M.A. as C.R.P. and the present matter was numbered as C.R.P. No.4288 of 1993 and I dictated the order therein after hearing the arguments advanced by the learned Counsel on both sides allowing the same and modifying the order of the learned Subordinate Judgeby omitting the direction requiring the defendant to deposit half of the decretal amount keeping in view the fact that the defendant had already deposited Rs.10,000/- pursuant to the directions of this Court which was already withdrawn by the plaintiff and directing that the ex parte decree of the learned Subordinate Judge should be set aside subject to the condition of the defendant depositing the costs of Rs.3,731/- by 21-1-1994. I also directed that the amount of costs deposited and the amount of Rs.10,000/- already received by the plaintiff shall be taken into consideration by the lower Court at the time of pronouncing judgment in the suit and would be subject to the result of the suit and directed the lower Court to expeditiously dispose of the suit preferably within six months.