Full Judgment Text
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CASE NO.:
Appeal (civil) 1778 of 2002
PETITIONER:
V.K. INDUSTRIES AND OTHERS
Vs.
RESPONDENT:
M.P. ELECTRICITY BOARD, RAMPUR, JABALPUR
DATE OF JUDGMENT: 01/03/2002
BENCH:
CJI, Shivaraj V. Patil & Bisheshwar Prasad Singh
JUDGMENT:
Shivaraj V. Patil,J.
Leave granted.
This appeal is by the defendants in the suit filed for recovery
of Rs. 3,84,455.44 with future interest @ 24% per annum from the
date of filing of the suit till realization of the amount. Suit summons
were not personally served on the defendants. However, the trial
court, on the basis of newspaper publication, held that service of
summons on defendants was sufficient. In the absence of the
defendants, the suit was decreed ex parte as prayed for by the
plaintiff. On coming to know the ex parte decree, passed against
them, the defendants filed a petition under Order IX Rule 13 of the
Code of Civil Procedure. The trial court dismissed the said petition.
Aggrieved by the same, the defendants filed Miscellaneous Appeal
before the High Court.
The High Court allowed the Miscellaneous Appeal and set
aside the ex-parte decree subject to the terms (i) the defendants
shall, within a period of two months, deposit a sum of Rs.2,00,000/-
with the trial court, (ii) shall furnish bank guarantee for the remaining
sum claimed in the suit within the said period of two months and
(iii) the amount so deposited shall be liable to be disbursed in
accordance with the final order that may be passed in the suit. It is
to be noted that the plaintiff has not challenged the order setting
aside ex parte decree.
The only grievance of the appellants is that the terms, upon
which ex parte decree is set aside, are onerous and not reasonable.
On behalf of the respondents submission was made supporting the
said terms as justified.
Ordinarily, a money decree is not stayed unconditionally and
the judgment-debtor would be put on terms. Even so, such
conditions must be reasonable having regard to all relevant factors.
Although ex parte decree was passed against the appellants, once it
is set aside on the ground of non-service of suit summons the
money decree did not exist for execution. It is no doubt true that in
restoring a case the court may impose conditions to deposit costs or
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the decretal amount or some portion thereof or to ask the defendant
to give security but such conditions should be reasonable and not
harshly excessive. In the impugned order the appellants are put on
terms to deposit a sum of Rs.2,00,000/- and to furnish a bank
guarantee for the remaining suit claim within a period of two months.
In our view these terms are onerous, harsh and unreasonable in the
facts and circumstances of the case and that too even before the
trial of the suit on merits.
On 29.10.2001, the learned counsel for the appellants stated
that within two weeks, a sum of Rs. 50,000/- shall be deposited in
the trial court and notice was issued on that day. During the course
of hearing the learned counsel informed that a sum of Rs. 50,000/- is
already deposited in the trial court.
We are of the view that it would be just and appropriate to
direct the appellants to deposit a further sum of Rs.50,000/- in the
trial court within a period of four weeks from today. The terms to
deposit Rs.2,00,000/- and to furnish a bank guarantee for the
remaining suit claim shall stand modified as indicated above. The
impugned order shall remain undisturbed in all other respects.
The appeal is disposed of accordingly. No costs.
.......................................CJI.
.........................................J.
(SHIVARAJ V. PATIL)
..........................................J.
(BISHESHWAR PRASAD SINGH)
March 01,2002.