The court has the power to impose conditions for setting aside an ex parte decree, but such conditions should be reasonable and not oppressive.

JUDGMENT

1. Defendant in the suit filed the above revision petition challenging the order dtd. 17/12/2021 in I.A.No.7143 of 2018 in O.S.No.77 of 2013 on the file of the Principal District Judge's Court, Kurnool.

2. Respondent being plaintiff filed suit O.S.No.77 of 2013 against the petitioner herein for recovery of amount. Revision petitioner being defendant filed written statement, however, he could not contest the matter. Hence, he was set ex parte. By the judgment and decree dtd. 10/8/2018, trial Court decreed the suit. The defendant filed I.A.No.1743 of 2018 under Order IX Rule 13 and Sec. 151 of CPC seeking to set aside the ex parte decree dtd. 10/8/2013.

3. Counter was filed by the respondent and opposed the application.

4. Trial Court by order dtd. 17/12/2021, allowed the application and set aside the ex parte decree, however, on condition of petitioner depositing into Court the entire suit costs and Rs.26,00,000.00 which is part of the decretal amount. Time is granted till 7/1/2022.

5. Against the said order, present revision petition is filed.

6. This Court by order dtd. 1/4/2022 granted interim stay and the stay is being extended from time to time.

7. Heard Sri G.Ramesh Babu, learned counsel for the petitioner and Sri K.Naga Phanindra, learned counsel representing Sri K.Rathangapani Reddy, learned counsel for the respondent.

8. Learned counsel for the petitioner would contend that the condition imposed by the Court below while setting aside the ex parte decree is onerous. Learned counsel would further contend that the application under Order IX Rule 13 of CPC was filed within 30 days and the same shows that the petitioner is diligent in prosecuting the proceedings.

9. Learned counsel for the respondent would contend that the petitioner is not diligent in prosecuting the proceedings. Having filed he written statement, he did not contest the suit, as a result, an ex parte decree was passed. The condition imposed by the trial Court is not onerous.

10. While considering the application under Order IX Rule 13 of CPC, the Court has to see whether the petitioner assigned proper reasons to set aside the ex parte decree. However, the Court also, while considering the application to set aside the exparte decree, can impose reasonable costs to meet the ends of justice. If sufficient cause is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalized for his previous negligence. In a case where the defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. A discretionary jurisdiction has been conferred upon the court passing an order for setting aside an ex parte decree not only on the basis that the defendant had been able to prove sufficient cause for his non- appearance even on the date when the decree was passed, but also on other attending facts and circumstances. It may also consider the question as to whether the defendant should be put on terms. The Court, indisputably, however, is not denuded of its power to put the defendants to terms. It is, however, trite that such terms should not be unreasonable or harshly excessive. Once unreasonable or harsh conditions are imposed, higher court can interfere with such discretion.

11. In Vijay Kumar Madan v. R.N.Gupta Technical education Society,(2002) 5 SCC 30 . the Hon'ble Apex Court deprecated the practice of imposing an undue condition and putting the defendant on onerous terms, stating as under:

"7. 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 (AIR 1964 SC 993) that on an adjourned hearing, in spite of the court having proceeded ex parte earlier