JUDGMENT :

M.R. Shah, J.

By way of this petition under Article 227 of the Constitution of India, petitioners have prayed for an appropriate writ, order or direction, quashing and setting aside the condition imposed on the petitioners for depositing a further sum of Rs.6.00 lakhs by the learned Chamber Judge, City Civil Court at Ahmedabad vide order dated 2.9.2008 below Exh.1 in Civil Misc. Application No.50 of 2008.

2. Respondent hereinoriginal plaintiff had instituted Civil Suit No.1044 of 1999 in the City Civil Court at Ahmedabad under Order 37 of the Code of Civil Procedure claiming Rs.31,73,093.53 ps/ with interest at the rate of 24% p.a. It appears that an exparte decree came to be passed by the learned Judge of the City Civil Court at Ahmedabad on 27.8.1999 in the aforesaid Civil Suit No.1044 of 1999. It is the case on behalf of the petitioners that they were never aware of the suit proceedings as also above the decree passed by the learned trial court in the aforesaid suit and for the first time they came to know on 11.1.2008 about the suit proceedings when the respondent initiated execution proceedings in 2008. It is also the case on behalf of the petitioners that they were never served with any summonses in the suit proceedings and they were unaware about the suit proceedings and the decree passed by the trial court. That thereafter immediately on coming to know about the aforesaid exparte decree, the petitioners preferred Civil Misc. Application No.50 of 2008 before the City Civil Court at Ahmedabad for setting aside the exparte judgment and decree. In the said application the petitioners took out notice of motion requesting to stay the execution proceedings. That the learned Judge of the City Civil Court at Ahmedabad granted the stay of the execution proceedings vide order dated 21.1.2008 on condition that the petitioners deposit an amount of Rs.6.00 lakhs within four weeks and file undertaking for the same within two days. It appears that the petitioners have deposited Rs.6.00 lakhs with the trial court in compliance of the order dated 21.1.2008.

2.1 The said Civil Misc. Application No.50 of 2008 was resisted by the respondentoriginal plaintiff. The respondent preferred Special Civil Application No.2666 of 2008 before this Court challenging the aforesaid order of staying the execution proceedings dated 21.1.2008 and the said Special Civil Application came to be disposed of by this Court vide order dated 12.8.2008 directing the City Civil Court at Ahmedabad to decide and dispose of application Exh.13 in the aforesaid Civil Misc. Application No.50 of 2008 as expeditiously as possible.

2.2 That thereafter vide impugned order dated 2.9.2008 the learned Judge of the City Civil Court at Ahmedabad has been pleased to allow the Civil Misc. Application No.50 of 2008 on merits by quashing and setting aside the exparte decree dated 27.8.1999 passed in Civil Suit No.1044 of 1999, however, while setting aside the exparte decree on merits, the learned Judge has imposed a condition on the petitioners to deposit a further sum of Rs.6.00 lakhs within four weeks from the date of the said order.

2.3 Being aggrieved and dissatisfied with the condition imposed by the learned Judge of the City Civil Court at Ahmedabad directing the petitioners to deposit a further sum of Rs.6.00 lakhs, while allowing the said application for quashing and setting aside the exparte decree, the petitionersoriginal defendants have preferred present petition under Article 227 of the Constitution of India.

3. Shri P.M.Dave, learned advocate appearing on behalf of the petitioners has vehemently submitted that when the Civil Misc. Application No.50 of 2008 submitted by the petitioners defendants for setting aside the exparte decree has been allowed by the learned Judge on merits, the condition imposed by the learned Judge to deposit further sum of Rs.6.00 lakhs is absolutely unwarranted and/or arbitrary which deserves to be quashed and set aside. It is further submitt