OM PRAKASH AGARWALA Vs. BERHAMPUR MUNICIPALITY

JUDGEMENT

(1.) THE defendant is the petitioner against an order of the trial, court passed in M. J.C. No.246/96 where in the trial Court while allowing the application of the petitioner under Order 9, Rule 13, Code of Civil Procedure has imposed a condition that the petitioner should deposit a sum of Rs. 4,20,900/- or furnish a bank guarantee for the said amount as a condition precedent for setting aside the ex-parte decree. THE petitioner is aggrieved by the imposition of such condition.

(2.) THE learned counsel appearing for the petitioner has submitted that the petitioner due to his heart ailment has spent a huge amount and as such he is not in a position to comply with such a direction. It is also submitted that the trial Court having found sufficient cause for non-appearance of the petitioner should not have imposed such an oppressive condition which has the effect of nullifying the order. THE latter submission of the petitioner appears to be justified. It is no doubt true that a Court while setting aside an ex parte decree can impose such condition as to cost or payment into Court, as deemed just and proper. In the present case, the trial Court observed:-