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2005 Supreme(Cal) 291
High Court Of Calcutta
PINAKI CHANDRA GHOSH, PRAVENDU NARAYAN SINHA
GRACE HILL TEA INDUSTRY - Appellant
Versus
TEA AUCTION LIMITED - Respondent
C. S. 234 Of 2002
Decided On : 05/02/2005
A court cannot impose a condition on an appellant to furnish security for the same amount as a decree that is being recalled.
Headnote:
ORDER 9 RULE 13 - RECALLING OF DECREE - ORDER 9 RULE 7 - SUMMARY - The court set aside the order of the lower court that directed the appellant to furnish security for the same amount as the decree that was being recalled. The court held that such an order was unsustainable in law and that the lower court had erred in imposing such a condition on the appellant.
Fact of the Case:
The appellant filed an application under Order 9 Rule 13 to recall a decree that had been passed against him ex parte. The lower court allowed the application on the condition that the appellant furnish security for the same amount as the decree. The appellant challenged this order on the ground that it was prejudicial to him.
Finding of the Court:
The court held that the lower court had erred in imposing such a condition on the appellant. The court noted that the appellant had been advised by his lawyer not to appear before the court when the matter was called up for passing the decree, and that this constituted a sufficient cause for his failure to appear.
Issues: Whether the lower court erred in imposing a condition on the appellant to furnish security for the same amount as the decree that was being recalled.
Ratio Decidendi: The court held that the lower court had erred in imposing such a condition on the appellant because it was unsustainable in law. The court noted that the appellant had been advised by his lawyer not to appear before the court when the matter was called up for passing the decree, and that this constituted a sufficient cause for his failure to appear.
Final Decision: The court set aside the order of the lower court that directed the appellant to furnish security for the same amount as the decree that was being recalled.
( 1 ) WE have heard the learned Counsel for the parties at length. We do not think it would serve any further purpose to keep this matter alive at this stage since the matter is only on the ground that the order which has been passed by the Hon'ble First Court allowing the application filed by the appellant/ petitioner under Order 9 Rule 13 recalling the decree made under Order 12 rule 6.
( 2 ) IT is true that the appellant did not appear when the matter was taken, up by the Hon'ble First Court and as such an exparte order/decree was passed. However, that facts need not be gone into at this stage since, the application was allowed filed by the appellant/petitioner under Order 9 Rule 13 with a condition imposed on the appellant/petitioner by the Hon'ble First Court that the applicant should secure a sum of Rs. 37 lacs either in the form of bank guarantee or in cash within a period of 12 weeks from date and if such security is furnished, then the order passed by the Hon'ble First Court would stand recalled and further it appears that the said order was passed allowing the said application imposing cost of Rs. 10,000/- on the appellant/petitioner.
( 3 ) MR. Ghosh appeared on behalf of the appellant/petitioner and drew our attention to Order 9 Rule 13 as well as Order 9 Rule 7.
( 4 ) HE submits that the decree was passed for the said sum of Rs. 37 lacs against the appellant/petitioner. In one hand the Hon'ble First Court has recalled the said decree but on condition to furnish the said decretal dues being a sum of rs. 37 lacs. He submitted if there is no such decree is passed against the appellant/petitioner there is no reason to ask to secure the claim either by way of a bank guarantee or in cash with the Registrar O. S which would show that it is nothing but a condition imposing upon the appellant/petitioner which would prejudice the petitioner and that too by way of a decree already passed in the said application. It is nothing but an attachment before a decree, although no case has been made out to that extent.
( 5 ) AFTER hearing the parties it appears to us and we know that if a decree is passed and an appeal is preferred from the said decree the Court has power to direct the judgment-debtor to secure the decree but when a decree is being recalled it is unthinkable that the similar type of order should be passed directing the appellant/petitioner to secure the decree by way of furnishing bank guarantee for the same amount and even in cash to secure the claim and thereafter imposing cost to Rs. 10,000/ -. We cannot appreciate this sort of stand taken by the Hon'ble First Court. An application under Order 9 Rule 13 empowers a person who has suffered by a decree passed exparte to apply before the Court for recalling of the said decree. It is unthinkable that the Court recalls such an order on one hand and give further direction to the appellant/petitioner on the other hand to furnish security and that too for the same amount. This practice cannot be appreciated before a decree is passed, it is executed. It appears to us that it is nothing but a sugar coating quinine given to the litigant. A litigant is always in the hand of the learned lawyer by whom they are advised to proceed in the matter.
( 6 ) IT is also stated before us that the appellant/petitioner was advised by the lawyers not to appear before this Court without service of writ of summons. Admittedly, no writ of summons even today has been served upon the appellant/ petitioner excepting that under the Original Side Rules of this Court notice of motion was taken out in respect of Order 12 Rule 6 of the Code and that notice has been served upon the appellant/petitioner. Therefore, there may be misunderstanding by the said litigant on the basis of the advice given by his learned Advocate and thereby prevented by a sufficient cause to appear before the Court when the matter was called on for passing the decree under Order 1
