The court maintains discretion in imposing costs in setting aside ex parte judgments, with considerations for delay and securing decree amounts clarified.

JUDGMENT Both these original petitions have been filed by the petitioner/plaintiff for challenging the condition imposed by the Principal Sub Judge, Thalassery, in RPIA Nos.49 & 51 of 2023, filed in O.S No.31/2022.

2. Heard the arguments for the learned counsel for the petitioner and the respondent.

3.The case of the petitioner is that the petitioner/plaintiff filed a suit for recovery of money against four defendants in O.S No.31/2022 before the Principal Sub Court, Thalassery. The respondents/defendants were set ex parte, and the suit was decreed in favour of the plaintiff by judgment dated 30.11.2023. Subsequently, defendants 1 and 2 filed R.P.I.A. No. 49/2023, and defendants 3 and 4 filed R.P.I.A. No. 51/2023, both under Order IX Rule 13 of the Code of Civil Procedure , seeking to set aside the ex parte judgment. After hearing the argument, the trial court allowed both applications and set aside the ex parte decree by order dated 02.07.2025, imposing a cost of Rs. 3,000/-

each in R.P.I.A. Nos. 49/2023 and 51/2023. Hence the petitioner / plaintiff is before this court, challenging the same.

4.The learned counsel for the petitioner contended that the ex parte judgment delivered and without considering and appreciating documents on record, the trial court allowed the application by imposing a meager cost of Rs.3000/-, which is not correct. It is further contended that there is no condition requiring the respondents to deposit the decree amount or any portion thereof while setting aside the ex parte decree, hence prayed for setting aside the same or modifying the order.

5.Per contra, the learned counsel for the respondent objected to the submission of the learned counsel for the petitioner and supported the orders passed by the trial court.

6. Considering the facts and circumstances of the case, it is submitted that on 19.12.2023, within 30 days of the ex parte decree, defendants 1 and 2, and defendants 3 and 4 appeared in two separate sets and filed applications for setting aside the judgment and decree. The same was allowed by the trial court after hearing the other side. However, the cost imposed by the trial court is only Rs. 3,000/– each, which, according to the petitioner, is meager. Whereas the respondent says that it is a discretionary power of the court to impose the cost. It is also relevant to note that although the suit is of the year 2022 and the ex parte judgment was passed in 2023 itself, the impugned order setting aside the ex parte decree was passed only in July 2025, nearly one year and eight months after the decree. Therefore, the plaintiff shall be properly compensated for the delay in setting aside the decree passed by the court. Therefore, this court also feels Rs.3000/- imposed by the trial court in each petition is little bit less, though the imposition of cost is a matter within the discretionary powers of the court, but it has to be enhanced to Rs.6000/- in each of the two petitions. However, the contention of the petitioner's counsel is that a condition ought to have been imposed directing the respondents to deposit any portion of the decretal amount is not acceptable. The petitioner may take recourse for attaching the property by invoking the provision under Order XXXVIII Rule 5 of CPC. Hence, there is no necessity to impose any condition for depositing any part of the decretal amount when the ex parte judgment itself has been set aside by the trial court.

Accordingly, both petitions are allowed in part. The order imposing a cost of Rs.3000/- each is modified and enhanced to Rs.6000/- each. The Sub Court, Thalassery, shall make an endeavour to dispose of the suit as early as possible, subject to the cooperation of the parties.