A court has the jurisdiction to impose conditions on the stay of execution of an ex parte decree in the exercise of its inherent powers.

1. Facts giving rise to this revision petition under Section 115, Civil P.C., are that the plaintiff-petitioner gave the house in question on lease to the defendant at a monthly rent of Rs. 1750/- from 16th September, 1977 and for a period of eleven months. A lease deed was accordingly executed After 15th August, 1978, the defendant stopped payment of rent. The cheques issued by him bounced once or twice. The plaintiff then served notice on the defendant calling upon him to vacate the house within three months. Upon the failure of the defendant to vacate the house, the plaintiff instituted a suit on 3rd/4th October, 1979, claiming possession of the house and Rs. 21,000/- as arrears of rent. The defendant, though served, did not put in appearance in the Court of the Senior Sub-Judge Gurgaon, on 3rd December, 1979. Hence, the case was adjourned to the following 17th for recording ex parte evidence. In the meantime, the defendant on 13th December, 1979, put in an application under Order 9, Rule 13 read with Section 151, Civil P.C. for setting aside the order of ex parte proceedings against him on the ground that he had fallen ill on 2nd December, 1979, and that he recovered on the following 10th. The Court set aside the ex parte proceedings against him and fixed 7th January, 1980 to enable the defendant to file written statement on 7th January, 1980, again the defendant absented himself. The Court then adjourned the proceedings to 15th January 1980, for ex parte evidence. After recording the same the Court on 15th, January, 1980, ordered the defendant to put the plaintiff in possession of the house and to pay Rs. 21,000/- as arrears of rent and Rs. 6942.75 as costs. On 13th February, 1980, the plaintiff took out execution proceedings. During the pendency thereof, the defendant filed application under Order 9, Rule 13 read with Section 151, Civil P.C. for setting aside the ex parte decree. The said application was accompanied by an application under Section 5 of the Limitation Act for condoning the delay thereof. Another application under Sec. 151, Civil P.C. for the stay of the execution of the ex parte decree was made. The Court stayed the execution proceedings unconditionally, despite the plaintiffs request for the imposition thereof.

2. The facts detailed above would show that before the Senior Sub Judge, two matters were pressed by the defendant:

(1) Application under Order 9. Rule 13, Civil P. C. accompanied by an application under Section 5 of the Limitation Act, for setting aside the ex parte decree passed on 15th January, 1980, and

(2) Application under Section 151, Civil P. C. for staying the execution of the said ex parte decree. It need hardly be said that these are two distinct matters.

So far as Order 9, Rule 13. Civil P. C., is concerned, the relevant part reads:-

"In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside;............... the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit."

As is clear from the terms of Order 9, Rule 13, the question of imposition of terms as to costs etc. will arise when the Court makes an order setting aside the ex parte decree. Numerous rulings supporting this view have been cited before me. Relying on the terms of the above said provisions, it has been held that the conditions envisaged therein cannot be imposed before setting aside the ex parte decree. There is no quarrel with this proposition.

3. Learned counsel for the plaintiff-petitioner, however, pointed out that the lower Court ignored the fact that the imposition of conditions was being sought in the execution proceedings taken out by the plaintiff thus it failed to exercise jurisdiction vested in it. The Court allowed the request of the defendant in his application und