1. This is an application by the defendant against an order of the learned District Judge of Allahabad by which he affirmed an order of the learned Munsif, rejecting an application for restoration. On 15th July 1930, a mortgage was made in favour of the plaintiff. It was put in suit on 17th August 1985, and a preliminary decree was passed on 18th January 1937. The usual sale took place on 23rd August 1940, and a house belonging to the judgment-debtor was sold for Rs. 1400. The balance due to the decree-holder, therefore, was a sum of Rs. 1600, the entire decretal amount being Rs. 8000. On 11th September 1940, an application for setting aside the sale was made by the judgment-debtor on the ground that the proceedings had been taken behind his back and without his knowledge. It appears that along with the application for setting aside the ex parte decree a prayer was also made for staying the confirmation of the sale which evidently had not till then been confirmed. The matter was taken up on 14th September 1940, and the learned Munsif passed the following order:
Issue notice. Stay further proceedings in execution meanwhile. Applicant to furnish security to the extent of the claim by the next date.
2. On 3rd October 1940, the following order was passed:
No security has been furnished. Put up after information to the opposite party on 9th November 1940.
3. On 9th November the learned Munsif passed the following order:
No other security has been furnished. The property, the subject of the mortgage, is alleged to have depreciated in value and was sold for practically half the amount. The applicant must furnish security to the extent of Rs. 1500 at least before his application can be considered. If no security is furnished within three weeks, application to be dismissed.
The case was finally taken up on 30th November 1940, and the learned Munsif, in a somewhat cryptic order, dismissed the application in these terms:
No fresh security is furnished. (Sic) has no force. The judgment-debtor owned only a half share and purported to mortgage only that share in the house in suit. He appears to be dragging on the proceedings to delay matters. In view of the order dated 9th November 1940, the application for restoration is dismissed with costs to opposite party.
4. This order was challenged in appeal but the learned District Judge has, as said above, affirmed it. The judgment-debtor has moved this Court on various grounds. It has been contended, in the first instance, that the order demanding security before setting aside the ex parte order is not warranted by the terms of Order 9, Rule 13. We think that this contention is sound. Order 9, Rule 13, provides:.and if he satisfied the Court...the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit....
5. It is abundantly clear that the stage for calling upon the judgment-debtor to furnish security arises only when the Court has made up its mind to set aside the ex parte order. In this case the learned Munsif called upon the judgment-debtor to furnish security before his prayer for setting aside the ex parte decree could be considered. In so deciding, we think, the learned Munsif went in the teeth of the express provisions of Order 9, Rule 13. The opposite party, however, has placed reliance on Madan Mohan v. Kanhaiya Lal : AIR1933All601 . We do not think there is anything in this ruling which goes against the contention of the learned Counsel for the applicant. All that it says is that it is open to the Court, while setting aside the ex parte order, to make the payment of costs or any portion of the decretal amount a condition precedent. There is a difference in a case where the Court accedes to the prayer of the party to set aside the ex parte order and deferring the operation of that order till the deposit of the amount and the case where the Court refuses even to consider the request before making the necessary deposit. In the former case the applicant is sure of his position. He knows that if he makes the necessary deposit there will be no further obstacle in his way and the ex parte order shall be set aside. In the latter case, he is never sure of his position even till the end. In theory the difference may seem to be unreal but in actual practice it means a world of difference. If, as in the first case, the man does not himself possess the requisite means and has to appeal to his friends and relations, the latter know that the sale shall be set aside the moment the necessary deposit is made, and they will perhaps more freely than otherwise come to the rescue of a friend or relation in need. In the latter case, they will naturally feel shy because they are never sure that even with the best of their help, there is any guarantee for the vacation of the ex parte order.
6. It might also be mentioned that in the ruling in Madan Mohan v. Kanhaiya Lal : AIR1933All601 , their Lordships considered the payment of a one-third of the decretal amount, as a condition precedent to the setting aside of the ex parte decree, as an unreasonable one. In the present case the decretal amount was Rs. 3000 and the condition precedent was the payment of Rs. 1600 plus costs. The condition was therefore an extremely onerous one, and one which ought never to have been imposed. On consideration of all the facts, we think that the procedure followed by the learned Munsif was not correct. We therefore set aside the order of the learned District Judge and send the case back to the Court of first instance with the direction to re-hear the application for restoration in the light of the observations made above. We make no order as to costs. We are informed that proceedings with regard to the confirmation of the sale have been stayed under an order of this Court. The operation of the order will continue till such time as the matter is decided by the learned Munsif.