ANJANEYULU CH Vs. A HARIPRASAD

JUDGEMENT

(1.) An ex parte decree was passed against the petitioner on 15-11-1994 and the I.A.No. 1582/94 filed by him to set aside the same was allowed by the District Munsif, Palakol on 1-11-1995 subject to the condition that the petitioner deposits suit amount by 20-11-1995 failing which it was ordered that the petition stands dismissed. Against this order, the petitioner has filed thisC.R.P. contending that the condition imposed by the Court below is onerous. While ordering notice before admission, I granted interim stay of execution of the decree on condition that the petitioner deposits suit costs. It is now represented that petitioner has deposited the costs within the time given. After notice, Mr. S.V.R. Subrahmanyam, appearing for the respondent raised a preliminary objection that the C.R.P. itself is not maintainable since against the conditional order passed by the Court below, appeal lies under Order 43 Rule 1 C.P.C. The preliminary objection raised has to be upheld in view of the decision of the Madras High Court in Kotaiah vs. Narasimhan wherein Justice Mack observed that:

(2.) This was followed by Justice S. Parvatha Rao in M/s. Gopal and Co. vs. M/s. Kure Balarajaiah Siddiramulu.

(3.) Thus, against the conditional order, the party who obtained exparte decree has to file C.R.P. in this Court if aggrieved by inadequate conditions imposed while setting aside the ex parte decree, while the party who complains that the conditions imposed are onerous has to file appeal under Order 43 Rule 1 C.P.C. But if there is no default clause, the party aggrieved by the inadequate conditions imposed has to challenge that order in C.R.P., while the party complaining of onerous conditions has to file appeal only against the subsequent order that has to be passed by the Court dismissing the I.A. for non-compliance of the condition imposed. This results in C.R.P. in this Court and a C.M. A. whether in this Court or in lower appellate Court depending upon the valuation and invariably it results in clubbing of the CMA and the CRP and by transfer of CMA to this Court to be heard along with the CRP in case C.M.A. is filed in the lower appellate Court. This dubbing can be avoided if appeal is provided under Order 43 Rule 1 of C.P.C. against the order allowing the petition to set aside the decree also so that appeals filed by the two parties can be disposed of by the same Court, whether this Court or lower appellate Court, by clubbing them together, irrespective of whether the conditional order imposes default clause or not. It is for Parliament to consider desirability of any such amendment to Sec.104.