Balwant Kaur Vs. Raj
Kumar Kapoor & ANR.  INSC 1642 (26 September 2008)
JURISDICTION CIVIL APPEAL NO. 5879 OF 2008 [Arising out of SLP(C) No.8928/2007]
BALWANT KAUR ... APPELLANT(S) :VERSUS:
Having heard the
learned counsel appearing for the parties, we are of the opinion that the
learned Trial Judge as also the High Court had imposed a harsh condition in
setting aside the ex-parte decree passed against the appellant herein in so far
as a direction for depositing the entire suit amount has been issued.
had not been served upon the defendant-appellant.
The suit, of course,
was filed under Order 37 of the Code of Civil Procedure. The learned Trial
Judge, however, did not express any opinion as to how it arrived at the
conclusion that the defendant-appellant had no defence at all.
-2- As the
defendant-appellant had not filed her written statement, the question of
disclosing her defence at that stage did not arise. The defence of the
defendant- appellant, if any, has to be gone into only after the written
statement is filed.
We are, therefore, of
the opinion that the impugned judgment cannot be sustained in its entirety.
The appellant is
hereby directed to deposit 50% of the decreetal amount in stead and place of
100%, within four weeks from date.
The appeal is allowed
to the aforementioned extent. There shall, however, be no order as to costs.