Yogeshwar Dayal, J.
(1) The present petition is directed against the order dated the 10th April, 1973, passed by the learned trial court declining stay of execution of an ex-parte money decree during pendency of an application under Order Rule 13 read with section 478(1) of the Code of Civil Procedure, which application was filed on the ground that the defendants were never served in the suit wherein the ex-parte decree was passed.
(2) The suit was filed for the recovery of Rs. 3894.43 P. against the petitioners and it is alleged by the petitioners that summons were directed to be issued to the defencants for 10th March, 1971. In the meanwhile on 2nd of February, 19/1, an application was filed for amendment of the plaint to give description of defendant No. 1 as a registered firm and of petitioners Nos. 2 and 3 as partners of defendant No. 1. On 10th March, 1971, it is further alleged that without service of the said application on the defendants, the amendment was allowed and none of the defendant has been served. The notice was again directed to be issued for 19th April, 1971. It is further alleged that on 19th April, 1971, a false report of refusal of service was made on behalf of defendants Nos. 1 and 3 and notices were directed to be issued to defendant No 2 only for 31st May, 1971, and thereafter for 28th July, 1971. On 28th July, 1971 the suit was dismissed for default of appearance. On an application of the plaintiff, it is alleged that the suit was restored on 5th August, 1971, and the Court directed the issued of notices for 9th September, 1971. It is alleged that on 9th September, 1971, defendant No. 2 was not served and no notice was issued to defendants 1 and 3 for the said date and the case was adjourned to 24th September, 1971 for service on defendant No. 7 only. It is further alleged that false report of refusal was made and on 24th September, 1971, the proceedings wire directed to be ex parte against all the defendants and the case was adjourned to 4th October, 1971, for ex parte evidence. On 4th October, 1971, ex-parte decree was passed. It is further alleged that the petitioner came to know about the suit when immovable property of defendant No. 1 at Karnal, was attached. On 29th May, 1971, an application was filed as stated above under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. Along with the application for setting aside the ex-parte decree, an application was also filed for ad interim stay of execution but during the disposal of the appli- cation for setting aside the exparte decree. The learned trial court, expressed no prima facie view one way or the other whether the service was at all effected; but it was contended by the counsel for the plaintiff respondent before the learned trial court that as a matter of law, the Court has no jurisdiction to entertain the stay application without deposit of the entire decretal amount and the reliance was placed on a judgment reported as Pamulapati Varadayya v. Kommareddi Chinnappareddi wherein it was held as under :
'...............IT is an established rule of practice that ordinarily stay of money decree will not be given unless there are special circumstances.'
(3) Mr. J. P. Gupta, learned counsel for the petitioner has argued that it cannot be said as a matter of law that before the stay is granted of the execution of the ex-parte of money decree, the decretal amount must be deposited in Court and without which stay cannot ' be granted by the court. It is also contended that even under Order 9 Rule 13, discretion is given to the trial court before setting aside the ex-parte decree to put the parties to terms such as payment into court or otherwise as it thinks fit of the decretal amount. It is submilted that this discretion has to be exercised by the Court in each case on the facts is and circumstances of that case to decide whether any condition and if so, what condition be put. There appears to be lot of force in the submission The trial court has relied on a decision of the Andhra Pradesh High Court reported as A.1.R. 1956 Andbra Pradesh, 64 (supra) which has got no application for stay ad interim pending application for setting aside the ex parte decree ; that is a decision which apptis to an application for stay of a money decree and stay being applied before theappellate court. It is an established practice of this Court also that normally no stay is granted of execution in appeal from money decree except on special circumstances. It is clear from the wordings of Order 9 Rule 13 that when ex parte decree is to beset aside, condition may be imposed of costs or deposit of money but normally where the court decides to set aside the ex parte decree it can be done only where the conditions precedent to as mentioned therein are satisfied. If those conditions are satisfied normally it does not call for any condition being imposed. It was held by the Division Bench of the Rajasthan High Court in the case reported as Chhagan Rajand orhers v .Sugan Mal where the Division B inch consisting of K. N. Wanchoo C. J. (as he then was), and D. S. Dave, J., as under :
'WHETHERthe court was right in impositing the terms relating to the deposit of the decretal amount or giving security for the same, deponds upon the circumstances of each case. Generally speaking, costs should b3 sufficient to compensate the decree-holder in such cases if any damage is suffered by him on accouat of non- appearance of the defendant on the date fixed. The imposition of a further term as to payment of the decretal amount or giving security for the same is to be resorted to only in special circumstances for which the court must give reasons. A court, thereforee, acts with material irregularity in the exercise of its jurisdiction where it arbitrarily imposes a condition as to payment of the decretal amount or giving any reasons why this was necessary in addition to the usual condition as to payment of costs.'
(4) Again the Division Bench of the Madhya Pradesh High Court in the fulling reported as Alimohammad v. Manaklal Ratanlal held :
'WHILEsetting aside an ex parte decree the Court should not affix any condition onerous on the defendant unless it finds that he was at fault, that is to say, it can be imposed only if the defendant has been guilty of some omission, which, however, the courts find not serious enough to justify the maintenance of the ex parte decree. If there has been no due service of summons, the defendant is not to blame and unless he acquiescenees the order under Order 9 Rule 13 should be conditional. The acquiescence must be clear and in writing.'
(5) I respectfully agree with the observations made in the judgments of the Rajasthan & Madhya Pradesh High Courts. Normally speaking it is absolutely discretionary for the Court to affix the condition as mentioned under Order 9 Rule 13 and it is a matter of discretion to be exercised in each case Such an order cannot be ordinarily subject to revisional jurisdiction of this Court. However, in the present case the only reason given is that the petitioner is bound in law as a matter of compulsion to deposit the decretal amount without which there can never be stay of money decree and the way the mind of trial court works can only be seen in the words or reasons given in the order. In the present case the only reason given by the learned trial court appears to be the judgment of the Andhra Pradesh High Court which, as I have mentioned above, has no application at all to stay application pending application for setting aside ex-parte decree, The trial court never applied his mind independently as to whether it was a fit case to grant stay either conditionally or unconditionally. Even if the condition has to be imposed, what sort of condition is required in the circumstances of the case, is for the trial court to decide on facts. As held by (he Division Bench in the cases cited above, the trial court should judicially exercise its discretion. My conclusion, as stated above, also finds Support from the provision of Section 17 of the Provincial Small Cause Courts Act (Act No. 9 of J 887), which is as under :
'17.(1) The procedure peescribed in the Code of Civil Procedure, 1901, shall, save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits: Provided that an applicant for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of judgment, or give, such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed. (2) Where a person has become liable as surety under the proviso to sub-lection (1), the security may berealized in manner provided by section 145 of the Code of Civil Procedure, 1908.' It will be seen that the Code of Civil Procedure was specifically made applicable to the suits triable by Small Cause Courts under the said Act and yet a specific provision was made for deposit in court of the amounts due under the decres and to give security. Again, sub-rule (1) of Order 21 Rule 26 Civil Procedure Code provides as under : '(1) The Court to which a decree has been sent for execution, shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment-debtor to apply to the Court by which the decree was passed, or to any Court having appellate jurisdiction in respect of the decree or the execution thereof,for an order to stay execution, or for any other order relating to the decree or execution which might have been made by such Court of first instance or Appellats Court if execution had been issued thereby, or if application for execution had been made thereto.'
(6) It will be noticed that the relevant rule applicable to stay of execution ad interim pending decision of the application for letting aside an ex-parte decree is contained in sub-rule (1) of Order 21 Rule 26 Civil Procedure Code which shows that a discretion is given to the court to pass appropriate orders as it thinks fit. There is no rule of law making deposit of decretal amount as a condition precedent for stay of execution as a matter flaw and or that yet no other order can be passed, lam, thereforee, constrained to accept this petition, let aside the order dated the 10th April, 1973, passed by the trial court and direct that the application for stay may be decided according to law and the observations made above. However, on the facts and circumstances of the dees, the parties are left to bear their own costs.