IN THE HON'BLE HIGH COURT OF JUDICATURE AT BILASPUR. CHHATTISGARH Writ Petition (0 No. S-^<- of 20 PETITIONER/: (Applicant) Nemichand Jain, S/o Seemrathmal Jain, Aged about 63 years, R/o"Vivekanand Nagar, Raipur, District: Raipur, Chhattisgarh. - Versus - RESPONDENT/: (Non-applicant) ^<cfc ' \'r ^' \ ^L?'""' ..•''-y'^'v^- \^.^ Smt. Shyama Devi, W/o Shiv Narayan Verma, Aged about 45 years, Through Power of Attorney Holder Lal Krishna Verma, S/o Shalik Ram Verma, R/o Quarter No.59-B, Ruabandha Sector, HSCL Colony, Bhilai, Tahsil & District: Durg, Chhattisgarh. ,^S:=;;'-~6S^, -y^"'o XA y^ ? 'l'..^ :wiP^£0.1 ,t^f; inoy • /#ji Ji-i"o..,'IS / "-^.^^w^. Iti-'p'^ '^y /,: WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF APPROPRIATE WRIT/WRITS. DIRECTIONS ETC., IN THE NATURE OF MANDAMUS. CERTIORARI AND/OR ANY OTHER SUITABLE WRIT OF LIKE NATURE s//^ ^^^^^.•o' HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justjce^rashantKymar Mjshra Writ Petition (C.) No.356 of 2008 Petitioner Respondent versus Nemichand Jain Smfc Shyama Devi Present: Shri Malay Shrivastava, counsel for the petitioner. Smt. Fouzia Mirza, counsel for the respondent. WriLPetition under Article 227 of the Constitution of India ORAL ORDER (Passed on 7th October, 2010) Heard on admission. 2. The suit preferred by the respondent was decreed ex parte and the application filed by the petitioner/defendant under Order 9 Rule 13 ofthe Code ofCivil Procedure, 1908 (henceforth 'the Code') has been allowed by the impugned order dated 29-10-2007 (Annexure P-6), however, while allowing the application, the learned Court below has imposed some conditions, which are under challenge in this writ petition. 3. In the impugned order, the learned Court below has directed that the petitioner/defendant shall pay cost of Rs.5,000/- to the respondent/plaintiff and the fixed deposit earlier submitted before the Court in course of hearing of the application under Order 9 Rule 13 l^ of the Code and in course of execution of the ex parte decree, shall " .-:'i-""a^ ~*%:6^ g i!is E!.r-3*^^a <° remain deposited during pendency ofthesuit and shall be placed in the record ofthe civil suit. 4. Shri Malay Shrivastava, learned counsel for the petitioner/defendant would argue that the said condition imposed by the Court below is contrary to law inasmuch as when the rights of the parties have not been adjudicated and the ex parte decree has already been set aside, there is no requirement or justification for directing the petitioner/defendant to continue to deposit any amount before the Court below. 5. Per contra, Smt. Fouzia Mirza, iearned counsel for the respondenVplaintiff would argue that the condition imposed by the Court below has been made as pre-condition for setting aside the ex parte decree and the Court has all powers to impose such condition. 6. After hearing learned counsel for the parties, this Court is of the opinion that imposition of cost of Rs.5,000/- as a condition for setting aside the ex parte decree to compensate the respondent/plaintiff would be justified as the Court has all powers to impose cost while setting aside the ex parte decree, however, the other condition regarding the fixed deposit appears to be unreasonable and not in accordance with law. 7. Undisputedly, the said fixed deposit was submitted under the provision contained in Order 21 Rule 37 of the Code when the ex parte decree was under execution and as a condition forstaying the ex parte decree the executing Court directed the petitioner/judgment-debtor to submit fixed deposits so that if ultimately the ex parte decree is not set aside, the execution could be materialized, however, when the ex parte decree itself has been set aside by the Court at a subsequent stage while deciding the application under Order 9 Rule 13 of the Code, directing the petitioner/defendant or a direction to keep the fixed deposit intact during pendency of the suit, is not supported with any provision of law. The only provision regarding imposing condition on the petitioner/defendant before a judgment would be found under Order 38 of the Code, however, for exercising power under Order 38 of the Code there has to be proper application in prescribed format and conditions stipulated under Order 38 of the Code has to be satisfied. In fact, there was no suit pending before the M.J.C. Court while hearing prayer for setting aside the ex parte decree and thus the M.J.C. Court could not have exercised power under Order 38 of the Code or any other power analogous to that for imposing condition on the petitioner/judgment-debtor. 8. In view of the above, the second condition imposed in paragraph 11 of the impugned order is set aside. The first condition regarding imposition of cost of Rs.5,000/- is not interfered. Learned Court below has assigned reason for imposing cost and the said reason does not appear to be arbitrary or illogical. 9. Learned counsel for the petitioner/defendant has argued that e<?en cost of Rs.5,000/- should not have been imposed after once recording the finding that notice was not served on the petitioner/defendant, however, cost has not been imposed by way of penalty for not appearing in the Court but it has been imposed to 1 .^sy Gopal compensate the other party for a long drawn litigation from 2002. This Court, in exercise of its power under Article 227 of the Constitution of India, would not interfere in the matter regarding imposition of cost. 10. In view of the above, the writ petition is disposed of in the following terms: ^ (i) Condition No.2 in paragraph 11 of the impugned order is set aside. (ii) Condition No.1 regarding payment of cost is affirmed. (iii) The Court below shall do well to dispose of the suit within a period of three months from the date of presentation of certified copy of this order. Parties to the suit are directed to co-operate with the proceedings in the Court below. _____——-- —— ~ Sd/1- ^ prashant Kumar Mishra; Judge