A court has the power to impose a condition for restoring a suit to its original number for depositing the decretal amount or part of the decretal amount or cost or damages which the court may deem fit and circumstances in each case.

This civil revision is directed against the order dated 17. 10. 92 passed by the IInd Addl. Civil Judge, Saharanpur by which the court below allowed the application under Order IX, Rule 13 read with Section

151 C. P. C. with the condition that the applicant in case deposited half of the en tire amount decreed within 30 days, in case of default in depositing the amount within the period, the application 4c for restoration shall stand auto matically dismissed and the decree and judgment dated 11. 5. 92 would become effective.

2. The court was pleased to direct the revisionist to serve the respondent so that they may file a counter affidavit. The respondent has filed counter af fidavit and Sri Shekhar Srivastava filed appearance on their behalf.

3. The short and important question for consideration in this civil revision is that whether the court below was legally correct in imposing a con dition of depositing of 50% of the decretal amount passed ex parte. The learned counsel for the applicant-revisionist submitted that admittedly proper ties worth more than Rs. 10 lacs had already been equitably mortgaged in favour of the plaintiff-Bank, the claim of the Bank is secured much more than required by the said mortgage. There was no justification or legal necessity to impose the condition for depositing the amount. The learned Counsel sub mitted that the condition imposed for setting aside the ex parte decree was arbitrary and illegal exercise of discretion and the condition imposed was onerous.

4. Decision reported in 12 ALJ 1270 - Nand Lal v. Kishore & others. The Division Bench of this Court was considering a case where the court passed an order, set aside an order dismissing a suit for default on condition of the plaintiff paying a certain amount of damages to the defendant and provided in the same order that in the event of such payment, not being made, the ap plication should stand dismissed. The Division Bench arrived at a conclusion that the court had intended to and did completely dispose of the application for restoration of the suit and the order was, therefore, appealable. The learned Counsel for the respondent submitted that the court below had passed final orders dismissing the suit and in view of decision of 12 ALJ (supra) the civil revision is incompetent and appeal lay against such an order. The learned counsel placed reliance on AIR 1926 All. 142 (Ahmad Hussain Khan v. Ear Dial ). The learned Counsel for the applicant pointed out from the said decision that in case of Jagannath Sahi v. Kamta Prasad Upadhyaya, (1914) 36 ALJ 77, this Court had expressed opinion that a conditional order was not a proper form in which to pass the order and that an order should be made directing payment of money by a certain time and then a separate order passed restoring or declaring to restore the suit, according to as money had been paid or not. The learned Counsel for the applicant attempted to point out the error in the order of the court below but he has omitted to consider and look to the further observations of the Division Bench observing "however that may be, to prevent any misapprehension, we wish to lay down definitely that an order restoring a case dismissed for default on condition of the pay ment of reasonable amount of cost to the opposite party within a time fixed by the order is not illegal order but on the contrary is an order contemplated by Order IX, Rule 13. This authority is not of any assistance to the revisionist. In the suit at hand, the decree was passed by the court below and at

the instance of the defendant on the application for setting aside the decree passed, the court had imposed the condition for depositing the half of the decretal amount. This was a case on a different footing. The court per haps considered it necessary for securing the claim of the decreeholder and put the condition as stated above. The learned Counsel for the revisionist cited AIR 1936 All. 177 (Gaya Deen v. Lalta Pr