The executing court has a duty to consider the means of the judgment debtor and whether they are refusing or neglecting to pay the decree amount. Conditions imposed to set aside an ex parte decree should be reasonable and not harsh or excessive.

ORDER :

Since both Civil Revision Petitions are between the same parties and orders impugned therein are from the same Court and as they are heard together, they are now to be disposed of by this common order.

2. O.S.No.9 of 2017 is a suit filed for recovery of Rs.28,43,534/- filed by plaintiff as against two defendants. The plaint was presented on 07.04.2017. Defendants made their appearance and they were to file their written statement on 18.09.2017. They failed to file the written statement and the proceedings went ex parte and the learned trial Court decreed the suit ex parte by its judgment dated 20.11.2017. Nine days thereafter it was on 29.11.2017 the defendants moved an application under Order IX Rule 13 C.P.C. requesting the learned trial Court to set aside the ex parte decree. Plaintiff was notified of it and he did not choose to file any counter. After enquiring into the matter, by an order dated 05.10.2018 the learned trial Court allowed that application in I.A.No.51 of 2018 in O.S.No.9 of 2017 and set aside the ex parte decree but subject to fulfillment of two conditions. It directed the defendants to deposit suit costs and also directed the defendants to deposit Rs.1,000/-to District Legal Services Authority. It granted time till 31.10.2018 for complying with the conditions. It stated that failure to fulfill the conditions would result in automatic dismissal of the application. It is in challenge to that, the winning parties/defendants preferred C.R.P.No.6397 of 2018 invoking the powers of this Court under Article 227 of the Constitution of India stating that learned trial Court ought not to have directed them to deposit the suit costs since within the prescribed time itself they moved the application and after keeping it pending for 10 months the learned trial Court passed such an order containing onerous conditions and therefore, the same shall be set aside.

3. As seen earlier, the learned trial Court decreed O.S.No.9 of 2017 on 20.11.2017. The winning plaintiff as decree holder filed E.P.No.1 of 2018 on 29.01.2018 and the said execution petition was filed under Order XXI Rule 37 read with Section 151 C.P.C. and the execution was levied as against defendant No.1/J.Dr. No.1 seeking for his arrest and detention in civil prison. Having received notices, J.Dr. No.1/defendant No.1 made his appearance and filed a counter wherein he informed the executing Court that his application for setting aside ex parte decree is pending and without a decision in it proceeding further with execution is incorrect and therefore, sought for dismissal of the execution petition. It is then the learned executing Court passed the impugned order on 04.10.2018. The order is extracted here :

“PW.1 filed chief affidavit and called present. PW.1 is a decree holder. Decree holder filed E.P. U/O.21 R.37 CPC seeking arrest of J.Dr.No.1 for recovery of amount in pursuance of decree in O.S.9/17 dated 20.11.17 on the file of II Addl. District Judge, Kurnool at Adoni. J.Dr. No.1 filed a counter, inter alia contended that the suit filed by the decree holder decreed ex parte on 20.11.17 and the J.Dr. filed a petition to set aside the decree and same is pending. It is further contended that the J.Dr has got sufficient ground to succeed in the suit. Having carefully gone through the contents of J.Dr. No.1 shows there is no grounds to challenge the EP. On the other hand, the grounds mentioned in the counter relating to suit transactions. The present petition is execution petition and the time sought by J.Dr. counsel is refused. Accordingly, issue arrest warrant against J.Dr. No.1 on payment of process. Call on 30.11.2018.”

4. It is in challenge to that, judgment debtor No.1 preferred C.R.P.No.6277 of 2018 under Section 115 C.P.C. contending that the impugned order is invalid and against law as it failed to advert to economic condition of judgment debtor No.1 and as it failed to consider pendency of application to set aside the ex parte decree and as it faile