1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR WRIT PETITION NO. 210 OF 2009 M/s S. B. Patil & Company & Ano. Vs. M/s Vyas Industries Fuel Corporation Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri S. P. Kshirsagar Adv. for petitioner. Shri R. R. Shrivastava Adv. for respondent. CORAM: C. L. PANGARKAR J. Dated: 6 th JULY, 2009. Heard. This Writ Petition challenges the order passed by the Civil Judge, Senior Division on an application for stay filed in proceedings under Order 9 Rule 13 Civil Procedure Code for setting aside ex-parte decree. Ex-parte decree came to be passed by the Civil Judge Senior Division Nagpur on 01.11.2007 against the petitioner. The 2 decree directs the petitioner to pay sum of Rs, 1,07,660/-. Petitioner filed an application for setting aside the said decree on the ground that summons or notice was not served upon the petitioner and it is only after a notice of execution was received that the petitioner came to know of the decree having been passed. Application was thereafter moved within time. Petitioner therefore sought to set aside the decree ex-parte and prayed for stay of the execution of the decree until application under Order 9 Rule 13 is decided. On the said application for stay the learned Judge passed an order granting stay upon petitioner depositing in the Court sum of Rs. 1,07,660/- and the petitioner feels aggrieved by that. I have heard the learned counsel for the petitioner and the respondent. Shri Kshirsagar learned counsel for the petitioner submits that while passing an order on application for stay Court cannot impose a condition on the party to deposit the entire decretal amount. He submits that such a condition is not contemplated under any of the provisions of the Civil Procedure Code. On the other hand Shri Shrivastava appearing for the respondent submits that application being one for stay the analogy of Order 41 Rule 5 be applied to the said application. He submits that the said analogy 3 needs to be applied against all the money decree essentially in a decree for directing payment of money and no Court in fact grants stay to the execution of the decree for money. He submits that therefore when the Court imposed condition of depositing money, and the order cannot be faulted. After having heard the learned counsel for the petitioner as well as respondent and after having considered the fact that this petition was not in fact circulated for very long time even after it was filed, I find that although provisions do not contemplate directions to deposit the entire decretal amount when an application under Order 9 Rule 13 is to be decided, I find that it would be desirable that the petitioner is called upon to furnish solvent surety to the extent of decree passed against the petitioner. In the circumstances the order passed by the Civil Judge is modified to the extent that petitioner instead of depositing money as directed the petitioner shall furnish solvent surety to the extent of Rs. 1,07,660/- in the trial Court and to the satisfaction of the trial Court within the time stipulated by the trial Court. If the security is not furnished by the petitioner within the time stipulated by the Court the stay shall stand automatically vacated. If such security is furnished, execution shall stand stayed. Trial Court shall as far as 4 possible try to dispose of application under Order 9 Rule 13 within a period of 4 months. Parties to appear before the trial Court on 15.07.2009. Petition stands disposed of f. JUDGE svk 5 6 7