1. This is an appeal against an order dated 25th July 1932, by which the Court below refused to set aside an ex parte decree. The facts of the case are that the suit was fixed for final hearing for 31st May 1932. On 23rd May 1932 the defendant's mother died and therefore the defendant on 25th May 1932 applied to the Court below for the adjournment of the case stating that as he had performed the funeral ceremonies of his mother he could not attend the Court for 13 days. On 26th May 1932 the Court passed an order to the effect that the plaintiff should take steps to bring the heirs of the deceased defendant on the record by 6th June 1932. It may be mentioned that the applicant's mother was also a defendant to the suit. It is true that the Court below did not make any definite order adjourning the case that was fixed for 31st May 1932, but the order that we have just mentioned might well be taken by any reasonable man as amounting to an order adjourning the case.
2. The plaintiff coming to know of this order applied on 28th May 1932 that it was not necessary to apply for substitution of names inasmuch as the son of the deceased defendant was already on the record. The Court therefore reconsidered its former order and directed that the case should proceed on 31st May 1932 and it was not necessary to bring anybody else on the record. This information was given to the counsel for the defendant who In his turn informed the defendant himself. The defendant therefore on 30th May 1932, detailed all these circumstances and pointed out that it was not possible for Mm under the circumstances to be present on 31st May 1932 or to make arrangements for the proper prosecution of the case. The Court however did not see its way to adjourn the case and proceeded to decide it on 31st May 1932. The Court on that day after stating the facts of the case held that the plaintiff had proved his case and therefore the suit was decreed. The defendant on 20th June 1932 put in the present application for setting aside the ex parte -decree. This application was opposed by the plaintiff-. The Court however on 12th July 1932, passed a conditional order to the effect that if the defendant deposited one-third of the decretal amount and paid Rs. 350 as damages by 30th July 1932 the application would be allowed and the case restored. The defendant considered the conditions imposed by the Court to be unreasonable and erroneous and therefore he applied on 25th July 1932 stating that it was not possible for him to comply with the conditions laid down by the Court. The Court on receiving that application dismissed the application of the defendant for restoring the case and it is against that final order dismissing the defendant's application for restoration that the present appeal has been filed before us.
3. It has been argued by the defendant that the Court below was not justified in directing the payment of the one-third of the decretal amount under the provisions of Order 9, Rule 13, Civil P.C. and that in any event such an order works very harshly on him as the decretal amount was as large as Rs. 25,000. We are not prepared to agree with the counsel for the defendant that, it was not within the jurisdiction of the Court below to pass an order for the payment of the decretal amount or a portion thereof in these circumstances. The wording of Order 9, Rule 13, makes it absolutely clear that the Court may in appropriate cases direct the party applying to make payment into Court of such sums as the Court thinks proper. This expression has been construed to mean a portion of the decretal amount: see the case of Shyam Lal Sahai v. Ram Nordin Lal Seth AIR 1920 Pat 660. We are however inclined to agree with the submission of the defendant that the condition was an unreasonable one. In re1 ply it has been argued by learned Counsel on behalf of the respondent that the defendant has been guilty of adopting obstructive tactics throughout and no indulgence ought to be shown to him. It is true that the suit itself was filed on 23rd November 1926 and that the defendant has managed to prolong it for 7 years and although we cannot escape the suspicion that the defendant has been so guilty but we are also of the opinion that providence and circumstances have been favouring him throughout. After having heard all that can be said on behalf of the respondent on this point we are satisfied that one should not punish the defendant in the present case by refusing to restore the case. The order dated 26th May 1932 by which the Court directed the plaintiff to take steps for substitution of names lulled the defendant into a sense of security and he might well have thought that the case had been adjourned and it would have served no useful purpose for him to have been present on 31st May 1932 nor was it possible for him under the circumstances mentioned when he was performing the funeral obsequies of his mother to have been present. The mere fact that another case of his was going on in another Court is no reason to suppose that he was adopting any proceedings calculated to delay the present suit because we have been told that in the other case all that was being done was that the counsel for the other side was arguing the case the arguments on behalf of the present applicant having already been concluded.
4. Next it was contended on behalf of the respondent that the applicant had misconceived his remedy inasmuch as he ought to have filed an appeal against the decree that was passed. The contention is that the decree was passed on the merits under Order 17, Rule 3, Civil P.C. There might have been some force in this contention if the learned Subordinate Judge had not construed his order decreeing the suit as tantamount to passing an ex parte decree. He himself was prepared to set aside the decree on the assumption that it was ex parte and we cannot construe the proceedings of 31st May 1932 in any way different from the way in which he himself has construed it.
5. On the assumption therefore that the decree was an ex parte decree we have got to consider whether the decree should be set aside under the circumstances of the case. It was argued that Courts have no jurisdiction to set aside an ex parte decree except on sufficient cause being shown and inasmuch as the Subordinate Judge was of the opinion that no sufficient cause had been shown, there is no jurisdiction either in the Court below or in us to set aside that decree. As a general proposition of law we are in agreement with the argument advanced by Mr. Baleshwari Prasad and that argument is supported by the case of Kallu v. Nadir Bakhsh AIR 1922 All 441. But we are of opinion that sufficient cause has been made out in the present case. The applicant's mother had died and he could not possibly have attended the Court on 31st May 1932. Moreover he was induced into the belief by an order of the Court that the case would not be taken up on 31st May 1932. We have come to the conclusion that there was sufficient cause for the absence of the defendant on the date fixed. At the same time the plaintiff is in no way to blame and he is entitled to such costs' as have been thrown away. We will therefore set aside the ex parte decree on terms and the terms that we impose are that the defendant should pay a sum of Rs. 350 before the case is restored. If this sum is paid in the Court below within a month from today the ex parte decree will be set aside. We therefore allow this appeal, set aside the order of the Court below and direct that if the defendant deposits a sum of Rs. 350 within a month from today the Court below shall readmit the suit on its original number and proceed to dispose of the same according to law after giving the defendant sufficient opportunity for producing his evidence. Costs here and heretofore will abide the event. If the money is not deposited the application for restoration will be deemed to be dismissed with costs throughout.