( 1 ) THIS appeal is filed against the order of the drat dated 11th August, 2003. It has been contended by learned counsel for the petitioner that the petitioner was not served and an ex-party decree was passed against the petitioner on 24th February, 1997 on the basis of substituted service. The petitioner filed an application for setting aside the said ex-party decree on 28th June, 1999. On 17th May, 2001 that application for setting aside the ex-party decree under Order 9 Rule 13 of Code of Civil Procedure was dismissed in default. Therefore on 28th May, 2001 the petitioner filed an application for restoration of the application under Order 9 Rule 13 for setting aside the ex-party decree. However, the application for restoration filed on 28th May,2001 was also dismissed by the DRT on 19th November, 2001. Aggrieved by the dismissal of the restoration application, the petitioner preferred an appeal before the DRAT. DRAT passed the impugned order dated 11th august, 2003 holding that there was sufficient cause for non appearance of petitioner, however, imposed a condition to deposit Rs. 25 lacs for restoration.

( 2 ) WE are surprised as to how the DRAT has passed the order imposing a condition to deposit Rs. 25 lacs for restoration of application. At page 100 of the paper book the DRAT has observed as under:-

" Therefore it cannot be stated in the circumstances that the appellant/2nd defendant was not serious in prosecuting the matter or was acting mala fide simply to drag on the matter. Therefore, in these circumstances, I am of the view that the application for restoration of the application for setting aside the ex-party final order ought to have been allowed. "

( 3 ) THEREAFTER it seems that in view of the arguments of the respondent-bank, the restoration of the application was made conditional that the petitioner should deposit a sum of Rs. 25 lacs with the respondent. For the reasons as stated in the order passed by the drat, the direction to deposit Rs. 25 lacs for the purpose of restoration of the application, it is apparent that the same is without any legal and factual basis and based more on the whims of DRAT. Either application for restoration ought to have been dismissed if there was no sufficient reason for the absence of petitioner and his counsel. But after inferring that there was sufficient reason for absence of petitioner and his counsel, imposing condition of pre-deposit of Rs. 25 lacs is totally unwarranted and without any basis.

( 4 ) THE DRAT would have been within its rights to impose some costs on the petitioner. But while restoring the application for the reasons as stated in the impugned order in the facts and circumstances of the case, it could not have imposed condition of deposit of Rs. 25 lacs merely on the statement of the counsel for the bank. When the DRAT was of the opinion that there was sufficient cause for setting aside the orders of dismissal of the application under Order 9 Rule 13 only cost could be imposed in the facts and circumstances of the present case.

( 5 ) THE application under Order 9 Rule 13 challenging the ex-party decree against the petitioner will still be pending, on setting aside the orders of dismissal and on restoration of application under Order 9 rule 13. The application under Order 9 Rule 13 could not be decided without disposal of restoration application under section 151 of Code of Civil Procedure for restoration. What was relevant was the circumstances in which the application for setting aside the ex-party decree was dismissed in default but not the merits of the application under Order 9 Rule 13 which could be considered only after restoration of the application under Order 9 Rule 13. While allowing the application for restoration under Order 9 Rule 13, merits of Order 9 Rule 13 could not be considered in order to restore it with a condition of pre-deposit of Rs. 25 lacs. Such a condition for restoration of Order 9 Rule 13 application is illegal a