of Orissa & Ors Vs. Sibaram Baral  INSC 729 (10 May 1996)
K.Ramaswamy, K.G.B. Pattanaik (J)
JT 1996 (6) 395 1996 SCALE (5)287
DAY OF MAY 1996 Present:
Mr.Justice K.Ramaswamy Hon'ble Mr.Justice G.B.Pattanaik Indrajeet Roy, Adv. Genl.,
Orissa, and P.N.Misra, Adv. for the appellant.
O R D
following Order of the Court was delivered:
of Orissa & Ors. V. Sibaram Baral (Simaram Barai)
O R D
the respondent had been served with notice on August 5, 1992, till date neither the unserved cover nor the
acknowledgement has been received back. Under these circumstances, notice must
be deemed to have been served.
only question is: whether, the High Court can direct the appellant to deposit
the decretal amount with costs of Rs.7,500/- as a condition to setting aside
the ex parte decree? The respondent laid the suit to recover a sum of Rs.1,46,820/-
against the appellants. The suit came to be decreed ex parte. The appellant has
filed an application under Order 9 Rule 13 CPC to set aside the ex parte
trial Court set aside the ex patre decree subject to payment of Rs. 50/-. The
High Court in the impugned order dated January 8, 1992 in CR no 694/91 allowed
the revision and set aside the order of the trial Court and directed the
appellants to deposit the decretal amount and the costs.
41 Rule 1(3) of CPC provides thus:
the appeal is against a decree for payment of money, the appellant shall, within
such time as the Appellate Court may allow, deposit the amount disputed in the
appeal or c such security in respect thereof as the Court may think it."
When an appellate power is exercised on an appeal filed against the decree of
the trial Court, the Court exercises judicial discretion to grant condition
stay of the execution of money decree resonably based on fact situation. In
this case, there is no appeal before the High Court against ex parte decree of
the trial Court itself set aside the ex parte decree subject to the payment of
the cost. When revision was carried, the High Court properly considered the
facts to set aside the ex parte decree and the case called for interference. It
cannot exceed its jurisdiction in directing the appellant to deposit the entire
decretal amount and also the cost of Rs. 7.500/-. The explanation given by the
state is well justified as no one takes responsibility for the lapses. Each
would pass the buck on the other ultimately it would be the public justice
which would conquer and put to jeopardy. Under these circumstances, the order
of the High Court is set aside and that of the trial Court is restored.
appeal is accordingly allowed. no costs.