1. This appeal is directed against the order of the Subordinate judge 1 Class, Chandigarh dated 14-6-1982 whereby application for setting aside an ex parte decree filed on behalf of the defendant-appellant was dismissed.
2. The plaintiffs, M/s. United India Insurance Co. Ltd. and another, filed a suit for the recovery of Rs. 37,297/19 paise against the defendant-appellant, M/s. Northern Carriers Private Ltd., Jullundur, No one appeared on behalf of the defendant in spite of service. Thus, after recording ex parte evidence, the suit was ultimately decreed on 13-1-1981. The application to set aside ex parte decree was filed on 4-2-1981 which was contested by the plaintiff-respondent. Ultimately the trial Court found that no reasons had been given as to why the appearance of the defendant or his counsel was not made on 27-101-980 and therefore, the defendant had failed to prove sufficient reasons for setting aside ex parte decree. Consequently the application was dismissed. Dissatisfied with the same the defendant has filed this appeal in this Court.
3. Since it was a money decree which was passed in the year 1981 and in view of the provisions of O. 9 R. 13 of the Code of Civil Procedure (briefly the Code), ex parte decree could be set aside on such terms as to costs, payment into Court or otherwise as it thinks fit, the learned counsel for the defendant appellant was asked on 14-2-1984, as to whether his client was prepared to deposit the decretal amount so that the ex parte decree be set aside on that condition and the case was adjourned to 1-3-1984. On 1-3-1984 the learned counsel for the appellant sought more time for getting instructions and the case was adjourned to 8-3-1984. Today the learned counsel for the appellants stated at the Bar this his client was not prepared to deposit the decretal amount as a condition precedent to set aside the ex parte decree.
4. As observed earlier, under O. 9, R. 13 of the code ex parte decree can be set aside on any given terms. One of the terms can be that the decretal amount should be deposited in Court so that the decretal amount may be available in case the suit is decreed after setting aside the ex parte decree. Since there can be attachment before judgment, similarly, requiring the appellant to merely deposit the amount in Court before the ex parte money decree is set aside, cannot be said to be too onerous a condition within the meaning of O. 9, R. 13. of the Code. The appellant, it is stated, is not prepared to deposit the amount, as a condition precedent and therefore, it is of no use to set aside the ex parte money decree, because even if it set aside on that condition, it will serve no purpose as it is quite clear that appellant is not prepared to fulfil the condition. In this situation. the appeal fails and is dismissed with costs.