IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 398 of 2008 Dr. Pradip Kumar Ghosh, Chairman, Board of Trustees, Washington Kali Temple, 16126 Columbia- Pike, Burtons Ville, Maryland- 20866 USA and another -Appellants. Versus Barun Kumar Banerjee S/o Sri Deb Kumar Banerjee - Respondent. Mr. Siddharth Shah, Advocate for the appellants. Mr. B.M. Pingal and Mr. Narendra Bali, Advocates for the respondents. (Hon’ble B.S. Verma, J.) This appeal has been preferred against the judgment and order dated 22-8-2008, passed by Civil Judge (Senior Division), Haridwar, in Misc. Case No. 67 of 2008, Dr. Pradeep Kumar Ghosh and another Vs. Barun Kumar Banerjee, whereby the application of the petitioner filed U/O 9 Rule 13 C.P.C. to set aside the expartee decree, was rejected. The learned counsel for the appellant has vehemently urged that the delay in filing the application U/O 9 Rule 13 C.P.C. was 19 days, and the learned trial court should have condoned the delay. Learned counsel for the appellant has also submitted that the respondent can be compensated by award of cost while condoning the delay in filing the application U/O 9 Rule 13 C.P.C. He has placed reliance on the judgment of the Apex Court in the case of N. Balakrishnan Vs. M. Krishnamurthy (Allahabad Rent Cases, 1998 (2) page 664). It is well settled that the power to condone the delay is the discrtionary power of the court and the courts should be liberal in condoning the delay. I am fortified in my view by the Apex Court judgment in the case of Apangshu Mohan Lodh and others Vs. State of Tripura and others [(2004)1 Supreme Court Cases, page 119]. The suit was filed for recovery of the money. The appeal has been filed on the ground that the counsel for the appellant could 2 not appear before the trial court on 6-2-2008, the date fixed in the suit and the suit proceeded exparte and final order was passed on 31.3.2008. The suit was being contested by the appellant through the attorney-holder. Due to the illness he could not appear before the court and the counsel for the appellant had not informed him about the date fixed in the case. The appellant has also filed the medical certificate along with the application for the period 20-3-2008 to 13-5- 2008. Objection was filed by the respondent against the application. The trial court has held that the delay was not properly explained. The learned counsel for the respondent has firstly urged that the medical certificate which was annexed along with the application only speaks about the treatment and no opinion was given by the doctor for bed rest, therefore, the appellant was negligent to pursue his case and the application could not be allowed. Secondly it is contended that it is a money decree, and if the court comes to the conclusion that the exparte order is liable to be set aside, in that event direction may be given to the appellant to deposit the decretal amount. In support of his contention learned counsel has cited the case of V.K. Industries and others Vs. M.P. Electricity Board, Rampur, Jabalpur, reported in (2002)3 Supreme Court Cases 159. I have gone through the above cited case. In para-5 it has been observed- “ Ordinarily, a money decree is not stayed unconditionally and the judgment-debtor would be put on terms. Even so, such conditions must be reasonable having regard to all relevant factors. Although ex part decree was passed against the appellants, once it is set aside on the ground of non-service of suit summons the money decree did not exist for execution. It is no doubt true that in restoring a case the court may impose conditions to deposit costs or the decretal amount or some portion thereof or to ask the defendant to give security but such conditions should be reasonable and not harsly excessive. In the impugned order the appellants are put on terms to deposit a sum of Rs. 2,00,000/- and to furnish a bank guarantee for the remaining suit claim within a period of two months. In our view these terms are onerous, harsh and unreasonable in the facts 3 and circumstances of the case and that too even before the trial of the suit on merits.” Considering this fact that the delay in filing the application is of only 19 days and is not intentional, therefore, in my view the delay has been properly explained. Further, in view of judgment rendered by Hon’ble Apex Court in the case of Apangshu Mohan Lodh and others Vs. State of Tripura and others [(2004)1 Supreme Court Cases, page 119],courts should be liberal and must not adop the hyper-technical approach in condoning the delay and opportunity of hearing should be given to parties in order to decide the case on merit. Therefore, following the ratio of above cited case laws, I am of the view that the delay in filing the application U/O 9 Rule 13 C.P.C. should be condoned and the exparte decree should also be set aside by imposing certain conditions. The appeal is allowed. The impugned order dated 22-8- 2008 rejecting the application 4-A/1 is set aside. The exparte decree dated 31-3-2008 passed by Civil Judge (S.D.) Haridwar in O.S. No. 21/2007 is also set-aside, and the case is restored to its original number, subject to cost of Rs. 5,000/- payable by appellant to plaintiff/respondent and further on deposit of a sum of Rs. 3,25,000/- by the appellant before the trial court to protect the interest of plaintiff/respondent during the pendency of suit. On deposit of the amount of Rs. 3,25,000/-, the same shall be kept in some fixed deposit of interest earning scheme and the same shall be disbursed as per decision of the suit. The above both the amounts shall be paid within eight weeks. The trial court is also directed to decide the suit as expeditiously as possible. Dated: 22-04-2011 (B.S. Verma, J.) ISB