THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION NO.4166 OF 2007 DATED 27TH APRIL, 2010 BETWEEN Vijjapu Venkata Padmanabham … Petitioner And Shriram Chits Private Limited. … Respondent THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION NO.4166 OF 2007 ORDER: The fourth defendant in the suit O.S.No.559 of 2005 questions the order dated 17.08.2007 passed by the Principal Senior Civil Judge, Rajahmundry, in I.A.No.440 of 2007 in the said suit, whereunder the application filed by the fourth defendant seeking condonation of delay of 176 days in filing the petition to set aside the ex parte decree. The I.A. No.440 of 2007 was allowed by the Court below subject to the condition of the fourth defendant depositing 1/10th of the suit claim which comes to Rs.40,000/- within a period of 15 days from the date of the said order. The Court below also directed that the respondent-plaintiff is at liberty to withdraw the suit costs after such deposit and keep the balance amount in the account of the suit until the petition filed under Order IX, Rule 13 of the Code of Civil Procedure and the main suit are disposed of on merits. The said order is questioned by the fourth defendant in this revision petition on the ground that the imposition of condition of depositing 1/10th of the suit claim is onerous. Heard both sides. The learned counsel for the revision petitioner/fourth defendant submits that once the Court below condoned the delay, the imposition of condition of depositing 1/10th of suit claim is clearly onerous and is liable to set aside. The learned counsel for the respondent-plaintiff submits that on account of the pendency of this revision petition, all further proceedings in the suit are held up, particularly as the suit is for recovery of amount and the respondent-plaintiff is unable to get any relief from the said suit even against the other defendants. It is no doubt true that imposition of onerous conditions while setting aside an ex parte decree was held to be not sustainable in view of Order IX, Rule 13 of the Code of Civil Procedure. But, however, it is open for the Court to impose costs. A Division Bench of this Court in Civil Revision Petition No.379 of 2000 dated 21.06.2007 had considered various decisions on the point and held that power is conferred on the court to impose conditions as to costs while setting aside an ex parte decree. Nevertheless, imposition of condition to deposit whole or part of the suit amount was held to be not permissible. In the present case, the condition imposed requiring the fourth defendant to deposit 1/10th of the suit claim is therefore clearly onerous and is liable to be interfered with. However, keeping in view the fact that the suit is of the year 2005 and the fourth defendant is seeking to set aside the said ex parte decree passed by the Court below, I deem it appropriate to modify the impugned order by deleting the condition of depositing 1/10th of the suit claim imposed on the fourth defendant and by substituting the same with a condition that the fourth defendant shall deposit costs of the suit, namely, Rs.11,787/- on or before 30.06.2010. The learned counsel for the revision petitioner/fourth defendant states that to the extent of depositing costs, he may not have any grievance. In that view of the matter, the Civil Revision Petition is allowed by setting aside the condition imposed with respect to deposit of 1/10th of the suit claim and instead the application for condonation of delay being I.A.No.440 of 2007 in O.S.No.559 of 2005 on the file of the Principal Senior Civil Judge, Rajahmundry, shall stand allowed subject to the condition of the fourth defendant depositing the suit costs, namely, Rs.11,787/- before the Court below on or before 30.06.2010. On such deposit, the respondent-plaintiff shall be permitted to withdraw the same without furnishing any security. Further, the trial Court shall take up the application filed seeking to set aside the ex parte decree and decide the same expeditiously and in the event of the same being allowed, the revision petitioner/fourth defendant shall file his written statement and proceed with the suit without any further loss of time. The trial Court shall also take up and decide the suit expeditiously and in any case before the end of December, 2010. No order as to costs. _____________________________ VILAS V. AFZULPURKAR, J. 27TH APRIL, 2010. VGSR/PGS