Conditional order held not appealable.

This appeal is directed against the order directing the appellant to deposit one of the decree amount in the Court as a condition for setting aside the ex parte decree. Court gave time to the appellant till 5.8.1991 and adjourned the matter to 6.8.1991 further orders. The appellant has preferred this appeal against the order imposing condition on the ground that it is an onerous condition.

2. The appeal has to be dismissed on two grounds. First, the appeal itself is not maintainable and secondly there is no merit. The order that is challenged in this appeal is not one which will fall under O.43, Rule 1(d). Under the said rule, an order under Rule 13 of O.9 rejecting an application for an order to set aside a decree passed ex parte is the order which appealable. In this case, there is no order rejecting the application. The order is imposing a condition on the appellant for the purpose of setting aside the ex parte passed against him. The matter has been adjourned. Unless there is an order rejecting application, no appeal will lie.

3. Learned counsel for the appellant relies on the judgment of a Division Bench in v. Lakshmayya, 57L.W. 292. In that case, a rolled up order was passed by the Court. The order while directing deposit of costs, declared that the petition will stand dismissed with costs in the event of the deposit not being made. Subsequently, an order was passed by the Court stating that the earlier order itself declared the petition to be dismissed in the event of default and therefore, no further order was necessary and the decree passed already would stand. In the appeal against the said rolled up order. The Bench held that the said appeal was maintainable, as in the said order it set out the consequences of the default and declared that the petition will stand dismissed.

4. The ruling of the Bench will not apply to the present case. In this case, the Court only adjourned to 6.8.1991 giving time to the appellant to make the deposit. On the said adjourned date, one cannot say that the Court would dismissed the application. The Court might have extended the time. Hence, the order that now challenged cannot be taken to be one rejecting the application under O.9. Rule C.P.C.

5. Learned counsel invites my attention to the decision of Balasubrahmanyan, J. in v. Mannankotti, 94 L.W. 464. In that case, an application to set aside the dismissal of a for default was allowed on condition of payment of costs on or before a particular date the case was directed to be called on the next day when it was found that the costs had been paid and the application was dismissed. An appeal was preferred against the order passed initially, but it was dismissed as incompetent as the former was a conditional order and not appealable and the latter was an appealable order, but not appealed against revision was filed against the dismissal of the appeal. Balasubrahmanyan, J. held that earlier order must be held to be an appealable order though in form it was a conditional order and therefore, he held that the appeal before the appellate Court ought to have heard on merits and determined. He followed the decision of the Division Bench in case, 57L.W. 292, overlooking that the rule of the Division Bench would not apply to facts of the case. I do not agree with the decision of Balasubrahmanyan, J. But, in this I do not think it necessary to refer the matter to a Bench. On the facts, I am of the view the Court below has passed a proper order.

6. The appellant stated in the affidavit filed in support of the application to set aside the parte order that as soon as he received summons in the suit he handed over the same Mr.V.N.Manoharan, Advocate, Erode, who agreed to appear for him. It is alleged that advocate advised him that it was not necessary for him to come again until he received intimation from him with regard to the filing of the written statement. According to the petitioner, he was expecting a letter from the said advocate, b