The court has the jurisdiction to impose conditions for setting aside an exparte decree, but such conditions should not be onerous, especially considering the circumstances of the case.

1. These two civil revision petitions are focussed as against the judgment and decree dated 15.06.2012 passed by the learned Principal District Judge, Namakkal in CMA No.5 of 2012 in confirming the order and decreetal order dated 01.02.2012 passed by the learned Subordinate Judge, Rasipuram in I.A.No.22 of 2012 and as against the order and decreetal order dated 01.02.2012 passed by the learned Subordinate Judge, Rasipuram in I.A.No.22 of 2012 respectively.

2. Heard both sides.

3. A thumbnail sketch of the germane facts, absolutely necessary and germane for the disposal of these two civil revision petitions would run thus:

The first respondent herein preferred the suit O.S.No.11 of 2008 seeking recovery of money based on pro note. The matter was contested; written statement was filed. However, the revision petitioner/defendant failed to participate in the proceedings. Whereupon, exparte decree was passed. Subsequently, application under Order 9 Rule 13 of CPC was filed with an application to get the delay condoned in filing the same. The delay application filed under Section 5 of the Limitation Act was allowed; however, the application under Order 9 Rule 13 of CPC was ordered subject to onerous condition to the effect that a sum of Rs.1 lakh should be deposited as a condition precedent for getting the exparte decree set aside. As against such conditional order passed, CRP No.2457 of 2012 has been focussed and the fact also remains that CMA No.5 of 2012 was filed before the appellate forum as against the same order; subsequently, the CMA was dismissed as not maintainable. As against the dismissal of the CMA also one other CRP in CRP No.2456 of 2012 has been focussed.

4. The learned counsel for the revision petitioner would submit that the I.A.No.22 of 2012 under Order 9 Rule 13 of CPC is pending in view of the stay granted by the appellate court.

5. The point for consideration is as to whether the condition imposed by the lower court was onerous or not and that too in view of the fact that the immovable property belonged to the judgment debtor was already attached as stated by the learned counsel for the revision petitioner?

6. I would like to extract here under para No.10 of the order passed by the court below in I.A.No.22 of 2012.

“TAMIL”

The learned counsel for the first respondent would develop his argument based on that. It appears as though on consensus that order was passed; but the learned counsel for the revision petitioner would submit that no such consensus emerged. Adding fuel to the fire, the trial court would refer to the fact that the respondent himself agreed for such a course; but there is nothing to indicate that the petitioner accepted the same.

7. The learned counsel for the first respondent herein would submit that owing to typographical error in both the lines in para 10 extracted supra, the words respondents are found typed and it cannot be like that and it should be construed only as a non-consensual order in view of the fact that the revision petitioner disowns such consent given for deposit. I do not want to elaborate further or undertake a roving enquiry on that.

8. No doubt, the trial court has got jurisdiction to impose certain conditions at the time of setting aside the exparte decree; but so far this case is concerned, the suit amount itself is for recovery of a sum of Rs.2,07,940/- based on 6 promissory notes. The plaint itself runs to several pages, so to say, 14 pages. It seems that there are some controversial issues between the parties. The fact also remains that the immovable property of the judgment debtor is also attached and the exparte decree was passed only for the first time and it is not as though successively, the defendant remained exparte.

9. Hence, taking into account the pro et contra, I am of the view that imposition of such deposit of Rs.1 lakh (Rupees one lakh only) is onerous only. Accordingly, the said condition is set aside and that the delay could be cond