Imposing costs as a condition to set aside an ex parte decree is unjust, especially when the preliminary decree is set aside, and the final decree does not render the revision infructuous.

ORDER :

NYAPATHY VIJAY, J.

1. The present Civil Revision Petition is filed questioning the Order dated 21.10.2020 in I.A. No.121 of 2020 in O.S. No.14 of 2014 in C.F. No.1569 of 2019 passed by the I Additional District Judge, Nellore, SPSR Nellore District.

2. The Petitioners are the Defendants. The suit O.S. No.14 of 2014 was filed by the Respondent/Plaintiff for recovery of money on the basis of the Mortgage Deed said to have been executed by the Petitioners/Defendants. A preliminary decree was passed ex parte on 23.01.2017.

3. While so, the Petitioners/Defendants filed I.A. No.121 of 2020 seeking to set-aside the ex parte decree under Order 9, Rule 13 CPC, wherein the reason given by the Petitioners/Defendants was that though they had engaged an Advocate, they could not file their Written Statement due to the illness of Petitioner No. 3. Due to illness and old age related ailments, the Petitioner No. 3 had to shift her family to Kaza Village of Guntur District for treatment. It was only when their Advocate informed about the suit being decreed ex parte, the present application was filed to set-aside the ex parte decree and this application was returned by the trial Court, as to how the petition is maintainable, since the suit was disposed of on contest.

4. As the trial Court was not taking up the applications filed by the Petitioners, A Civil Revision Petition No. 282 of 2020 was filed before this Court complaining that the trial Court was not taking up the applications and only adjourning them from time to time. This Court directed the trial Court to consider the applications of the Petitioners/Defendants and pass orders on the maintainability of the applications within a period of three (3) weeks from the date of receipt of copy of the order vide Order dated 27.08.2020.

5. The trial Court taking into consideration the reasons given by the Petitioners/Defendants, allowed the I.A subject to filing of the Written Statement by the Defendant Nos. 2 to 4 and to deposit suit costs and also on payment of Rs. 1,000/- to the Respondent/Plaintiff on or before 09.11.2020, failing which the petition stands dismissed.

6. The present Revision is filed questioning the condition to deposit suit costs. After filing the present Revision, it is submitted by both the counsel that a final decree was passed on 01.07.2024.

7. Heard Sri P.Sridhar Reddy, learned counsel for the Petitioners and Sri Sai Gangadhar Chamarty, learned counsel for the Respondent.

8. In the course of arguments, it was submitted by both the counsel that as the condition imposed in the impugned order was not complied by the Petitioners/Defendants, a final decree was passed on 01.07.2024 by the trial Court. The counsel for the Petitioners contended that the final decree should be set-aside, as a consequence, in the event this Court sets aside the condition imposed by the trial Court. The condition to deposit suit costs is erroneous and considering the precarious financial condition of the Petitioners, the same is onerous.

9. The counsel for the Respondent contended that the condition imposed by the trial Court to deposit suit costs is well within its discretion and some bona fides need to be established by the Petitioners/Defendants to contest the case. The counsel for the Respondent further contended that no further orders can be passed in this Revision, as the same has been rendered infructuous, since the final decree was passed by the trial Court. It is his contention that the preliminary decree stood merged with the final decree and no cause survives for setting aside the same.

10. Having heard the respective counsel, the following issues arise for consideration:-

a) Whether the condition to deposit the suit costs in a mortgage suit is onerous and liable to be set-aside?

b) What is the impact of the passing of final decree by the trial Court on 01.07.2024 on this Revision?

11. Issue (a): The suit being mortgage suit, the amounts due to the Plaintiff are secure and once the trial Cour