A court cannot impose conditions of payment of decretal costs or giving security as a condition for setting aside an ex parte decree where there is no fault on the part of the defendant.

Bhaskar Bhattacharya, J.

1. This revisional application is at the instance of defendants and is directed against Order No.84 dated July 3, 2001 passed by the learned Judge, 11th Bench, City Civil Court at Calcutta in Misc. Case No.6050 of 1999 thereby allowing an application under Order 9 Rule 13 of the Code of Civil Procedure filed by the petitioners on condition that the petitioners will deposit the costs of decree and will further furnish security to the extent of Rs.2 lakh each within a particular date and will also file written statement by that day.

2. The opposite party filed a suit being Title Suit No.3513 of 1995 for damages and compensation claiming Rs. 10 lakh on the allegation that due to negligence on the part of the petitioners, two Doctors, he lost his vision. The said suit was decreed ex parte.

3. Subsequently, on receiving notice of the proceedings for execution of the said decree, the petitioners filed an application under Order 9 Rule 13 of the Code contending that no summons of the original suit was ever served upon them and as such they could not contest the suit and it was only from the service of notice of execution case that they came to know about the passing of ex parte decree. The aforesaid application gave rise to Misc. Case No.6050 of 1999.

4. The aforesaid application was contested by the opposite parties alleging that summonses were duly served upon the petitioners at their medical college address and they had full knowledge of the decree.

5. Ultimately, the learned trial Judge after taking evidence, from the parties allowed the application as mentioned earlier.

6. It appears from the order impugned that after recording the respective contentions of the learned counsel for the parties, the learned trial Judge ultimately came to the following findings:-

"Considering the fact and circumstances of the case, considering the decision reported in Hon'ble Orissa High Court about the necessity of examining the postal authority, yet considering the reputation of two doctors is at stake• as well as the blindness of the plaintiff/opposite party is a fact that cannot be overlooked, I am inclined to direct the petitioners to deposit the cost of the decree and to furnish a security to the extent of Rs. 2,00,000/- each by 13th July, 2001 as well to file written statement in the original suit by that time, their application under Order 9 Rule 13 C.P.C. will be allowed, in default, this petitioner will stand dismissed on contest with costs.”

7. Being dissatisfied, the defendants have filed the instant revisional application.

8. At the time of entertaining this application this court suo motu issued a rule under Article 227 of the Constitution of India calling upon the petitioners to show cause why the entire order should not be set aside and the matter should not be remanded back to the learned trial Judge for fresh decision on merit. The learned advocate for the petitioners having waived service of notice of the Rule, the said Suo motu rule has been heard along with the instant revisional application.

9. Mr. Mukherjee, the learned counsel appearing on behalf of the petitioners submitted before this court that the application under Order 9 Rule 13 of the Code having been filed on the ground of non-service of summons and the court having allowed such application, it acted without jurisdiction in imposing conditions of giving security and depositing decretal costs as condition precedent. Mr. Mukherjee contends that if an application under Order 9 Rule 13 of the Code filed by a defendant on the ground of non-service of summons succeeds, the court cannot impose any condition for payment of decretal costs or giving security for any amount claimed in the suit.

10. Mr. Ray, the learned counsel appearing on behalf of the opposite parties has on the other hand supported the order impugned and has contended that in view of specific language used in Order 9 Rule 13 of the Code, a court is empowered to impose condition for de