9911796707
TMI Blog2006 (9) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... May, 2002. On the said application, notice of motion was to be served upon the defendants/respondents. The notice was returnable on 12th June, 2002. On the said notice, nobody had appeared on behalf of defendant No.1. A direction for filing of Affidavit in opposition was issued upon the plaintiff's application. Allegedly the said order was communicated to the respondent No.1 by Registered Post. The matter was again listed on 15th July, 2002. On that date nobody appeared on behalf of defendant No.1. A judgment and decree, upon admission for a sum of ₹ 37,26,428/- along with interest, was passed against defendant No.1. Defendant No.2 was a tea broker of defendant No.1. It was impleaded as the guarantor of defendant No.1. No decree, however, was passed against it. An appeal was preferred by the plaintiff-appellant there against as no decree had been passed against defendant No.2. The said appeal was dismissed. The defendant-respondent No.1, thereafter, filed an application for recalling the said ex-parte decree, inter alia, contending that they came to know about the institution of the said suit only when a memorandum of appeal together with a copy of the stay petition wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a decree on admission. The decree passed, however, was ex parte in nature. Applicability of the provisions of Order IX of Rule 13 of CPC is not in dispute. It reads as under: 13. Setting aside decree ex parte against defendant.- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd putting the defendant on onerous terms, stating : Power in the court to impose costs and to put the defendant-applicant on terms is spelled out from the expression upon such terms as the court directs as to costs or otherwise . It is settled with the decision of this Court in Arjun Singh v. Mohindra Kumar that on an adjourned hearing, in spite of the court having proceeded ex parte earlier the defendant is entitled to appear and participate in the subsequent proceedings as of right. An application under Rule 7 is required to be made only if the defendant wishes the proceedings to be reflected back and reopen the proceedings from the date wherefrom they became ex parte so as to convert the ex parte hearings into bi-parte. While exercising power of putting the defendant on terms under Rule 7 the court cannot pass an order which would have the effect of placing the defendant in a situation more worse off than what he would have been in if he had not applied under Rule 7. So also the conditions for taking benefit of the order should not be such as would have the effect of decreeing the suit itself. Similarly, the court may not in the garb of exercising power of placing upon te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to costs but to payment into Court or otherwise as it thinks fit as well. I do not think that the punctuation referred to above in the rule in any way lends support to the contention of the advocate for the petitioner. It looks to me that the Rule does not restrict the power of the Court to impose conditions for setting aside an ex parte decree to payment of costs only. The wording of the Rule is comprehensive enough to include conditions as to payment into Court of decretal amount or such other conditions as the Court thinks fit. Ordinarily the Court will not impose onerous conditions upon the defendant, such as the payment into Court of the whole or part of the decretal amount or as to furnishing of security therefor etc. The conditions as to deposit of decretal amount or such similar terms are imposed only under special circumstances. It is one thing to say that it is either inequitable or unjust to put the defendant to such onerous terms, but it is quite a different thing to say that the Court has no jurisdiction at all to impose such terms under any circumstances. In Somalal Nathalal Mistri vs. The Vasant Investment Corporation Ltd. Anr. ILR (1954) Bom. 371, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances amply justify a direction to the defendant to deposit the admitted portion of the suit claim. The defendant does not dispute her liability to pay the balance of unpaid purchase money with 5= per cent interest from 3-6-1970. All that she prayed in the reply notice dated 15-5-1970 was that she might be given two years time for that payment. The expression or otherwise is also required to be construed widely. In Packwood vs. Union-Castle Mail Steamship Company Limited [(1903) 20 Times Law Reports 59], it was observed : .....But the clause went on or otherwise, and he thought that meant in any other way, and that the clause did apply to the negligence of the butcher in allowing the dog to go loose and be lost. In Kavalappara Kottarathil Kochuni @ Moopil Nayar etc. vs. State of Madras Kerala Ors. [AIR 1960 SC 1080], this Court opined: On the basis of this rule, it is contended, that the right or the custom mentioned in the clause is a distinct genus and the words or otherwise must be confined to things analogous to right or contract such as lost grant, immemorial user etc. It appears to us that the word otherwise in the context only means wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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