Full Judgment Text
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PETITIONER:
STATE OF ORISSA & ORS
Vs.
RESPONDENT:
SIBARAM BARAL (SIMARAM BARAI)
DATE OF JUDGMENT: 10/05/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
JT 1996 (6) 395 1996 SCALE (5)287
ACT:
HEADNOTE:
JUDGMENT:
THE 10 DAY OF MAY 1996
Present:
Hon’ble 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 E R
The following Order of the Court was delivered:
State of Orissa & Ors.
V.
Sibaram Baral (Simaram Barai)
O R D E R
Though 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.
Leave granted.
The 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 decree.
The 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.
Order 41 Rule 1(3) of CPC provides thus:
"Where 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
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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.
The appeal is accordingly allowed. no costs.