JEYPORE SUGAR CO LTD Vs. PAMERLA SURYARAO

JUDGEMENT

(1.) The Court below decreed the suit ex parte on 17-8-1994. The revision petitioner-defendantfiledI.A.No.1171 of 1994 under Order9, Rule 13 of C.P.C for setting aside the exparte decree. The learned trial Judge has allowed the said I.A. by the order under revision subject to the revision petitioner - defendant paying Rs. 10,000/-- (1/5th of the suit amount) and costs of the decree quantified at Rs. 3,906-75 ps. to the respondent - plaintiff within one month from the date of the order. This revision petition is filed against the said order in so far as it directs payment of the aforementioned sums of money.

(2.) The argument of the learned counsel for the revision petitioner is that the condition imposed on the defendant is quite onerous and the facts and circumstances of the case do not justify imposition of such condition as a condition to order the application. On the other hand, Mr. N.V. Suryanarayana Murthy, the learned counsel for the respondent - plaintiff, would contend that having regard to the conduct and the way the revision petitioner - defendant conducted himself in the proceedings anterior to passing of the ex parte decree on 17th August, 1944, the learned trial Judge is fully justified in exercising his discretionary power and imposing the conditions.

(3.) It is trite to state that once an application under Order 9 Rule 13 C.P.C. is allowed and the exparte decree is set aside, exparte decree extinguishes. In other words, ordering an application under Or.9 Rule 13 C.P.C. obliterates ex parte decree from records. If that is so, a liability flowing from such ex parte decree should also cease to be operative. Setting aside a decree cannot be equated with suspension of operation of a decree because in the latter case, despite suspension the decree continues to exist though it is not operative. Therefore, the Courts will not be justified in imposing conditions as to payment of part of decretal amount while allowing an application under Order 9 Rule 13 C.P.C. as they normally do while suspending operation of decrees in the appeals. Therefore, the applicant - defendant cannot be saddled with a liability in full or part flowing from an ex parte decree, which is no longer in existence. Secondly, an ex parte decree is an outcome or a consequence or a result of an ex parte proceeding and is based on unilateral plea of the plaintiff. Allowing the application under Order 9 Rule 13 C.P.C. enables the defendant to contest the claim of the plaintiff. If that is so, it will be unreasonable, illogical and arbitrary for the Court to impose a liability on defendant to pay the suit claim even before adjudication on rival claims takes place and the Court decides to decree the suit. However, the Court while allowing an application under Order 9, Rule 13 C.P.C. in appropriate cases, order costs of the application including the advocate's fee. In the present case, the learned trial Judge has directed the revision petitioner - defendant to pay not only the costs of the decree but also Rs.l0,000/- being 1/5 th of the suit claim to the plaintiff, not to the credit of the suit, that too, without any condition. If the suit after adjudication is dismissed, that will force the defendant to initiate proceedings to recover sums of money paid to the plaintiff, if the plaintiff does not voluntarily repay the same, resulting in unnecessary and avoidable litigation. Therefore, it should beheld that, the direction to pay a part of the suit claim is quite onerous and unjustified as contended by the learned counsel tor the petitioner. However, taking into account the totality of facts and circumstances of the case,I am of the opinion that the direction to pay the costs can be sustained.