ALIMOHAMMAD Vs. MANAKLAL RATANLAL

JUDGEMENT

(1.) This is a miscellaneous appeal by the defendant from an order under Order 9 Rule 13 Civil Procedure Code. Though the order, as originally made was substantially in favour of the defendant applicant, it failed to benefit him on account of a condition that he should give security for the suit amount, which he did not implement. Actually, the Court had prescribed a time limit before which (sic) (the security had to be given.) Defendant had prayed for the deletion of the condition in review, but this being refused, the original order ceased to be operative. Another piece of confusion is that, in the interval, the decree-holder has put the ex parte decree into execution and has attached certain properties; a reference has been made to this, but it is irrelevant for the consideration of the present appeal.

(2.) The points for decision are primarily, whether in the absence of a finding in regard to the service or failure of service of the summons of notice, it was a proper exercise of discretion for the Court to have imposed this condition. Secondly, whether it was really a consent order, in that the defendant himself agreed to furnish security in return for the setting aside of the ex parte decree without going into the evidence. Thirdly, whether some order should be passed by this court on merits or the matter should go back to the trial court for a proper decision on merits of the allegations in the defendant's application for setting aside the ex parte decree. The difficulty is that, for one thing, the litigation itself has been very much prolonged, and, for another, this comparatively simple matter has come up for hearing after about four years. Still, if there is case, on legal grounds, to go back, the parties will have to court this additional inconvenience.

(3.) The facts relevant for the present proceeding are the following : The respondent brought a suit for a claim of money (about Rs. 16000/-). It is stated that the same had been the subject-matter of another suit and an ex parte decree in the erstwhile province of Bombay with reference to which Ujjain, in the erstwhile Gwalior State, was foreign territory. A fresh suit was brought at this end which, for various reasons, had already dragged on for more than a quarter of a century when an ex parte decree was passed against the defendant on 12-2-1954. There have been allegations and counter allegations in regard to the service of a summons or notice on this occasion, and though Shri Sanghi, appearing for the respondent has taken us through the evidence in this regard, in view of the order I propose to make, I am avoiding any discussion on merits. On 13th March, 1954 the defendant appellant filed an application for setting aside that decree alleging the absence of summons. As against it, the plaintiff's averment is that they had been served by affixing on the residence, and by publishing in a newspaper usually read at Ujjain where the defendant was living. What happened when it came up for final hearing on 15th February, 1956, is not clear. If there had been straightforward petitions by either party, the matter would have been simple; but actually there are no petitions but a statement in the order-sheet as to what either party stated. It is reported that the plaintiff was prepared to accept the defendant's position provided that the latter gave security for the claim. The obvious advantage for the decree-holder would be that instead of running after the defendant alone, he could, if occasion arose, realise from the surety. There is no petition by the defendant agreeing to this, but presumably, the court thought so from some statement at the bar on his behalf. Accordingly it ordered : "The application for setting aside of the decree is allowed on this condition precedent that the applicant shall give security within fifteen days for the amount under claim. The case should be put up on 7-31955."