STATE OF ORISSA AND ORS.versusSLBARAM BARAL (SIMARAM BARAI)

A                        STATE OF ORISSA AND ORS.
                                    v.
                                                                                         ~

                     SlBARAM BARAL (SJMARAM BARAi)
                                                                                     ~

                                   MAY 10, 1996

B                [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

            Code of Civil Procedure, 1908 :

           S.115, Order 9, Rule 13-Revision-Scope of-Application for setting
    aside ex-parte decree-Trial court setting aside ex-parte decree subject to
c   payment of Rs. 50-In revision High Court setting aside order of trial court
    and directing judgment-debtor ta deposit the decretal amount and also the
    cost of Rs. 7,50o-Held, High Court exceeded its jurisdiction-While deciding
    the revision, High Court was required to consider whether trial court properly
    considered the facts to set aside ex parte decree and the case called for
D   imeiference-Order of High Court set aside and that of trial court restored.

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9055 of
    1996.

            From the Judgment and Order dated 8.1.92 of the Orissa High Court
E in C.R.No. 694 of 1991.

            In~rajeet Roy, Adv. Genl., Orissa and P.N. Misra for the Appellants.


            The following Order of the Court was delivered :

F         Though the respondent had been served with notice on August 5,
    1992, till date neither the unserved cover nor the acknowledgment has been
    received back. Under these circumstances, notice must be deemed to have
    been served.

            Leave granted.
G
           The only question is : whether the High Court can direct the appel-
    !ant 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
H   ex parte. The appellant has filed an application under Order 9 Rule 13
                                          842
                      STATE v. S!BARAM BARAL (SIMARAM BARA!)                         843

          CPC to set aside the ex parte decree. The trial Court set aide the ex parte A


      -   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:
                                                                                            B
                   "Whether 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 furnish such security
                   in respect thereof as the Court may think it."
_..
                 When an appellate power is exercised on an appeal filed against the
                                                                                            c
          decree of the trial Court, the Court exercises judicial discretion to grant
          conditional stay of the execution of the money decree reasonably based on
          fact situation. In this case, there is no appeal before the Hii;h Court against
          ex parte decree of the trial Court. The trial Court itself set aside the ex
          pmte decree subject to the payment of the cost. When revision was carried,        D
          the High Court was required to consider whether the trial Court properly
          considered the facts to set aside the ex-pa1te 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   E
          for the lapses. Each would pass the buck on the other. Ultimately, it would
          be the public justice which would suffer 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.                               F
          R.P.                                                         Appeal allowed.

  /