T.V.R. Tatachari, J.
(1) This Civil Revision has been filed by Dharam Vir Singh against an order, dated October 10, 1972, passed by Shri O. P. Dwivedi, Subordinate Judge 1st Class, Delhi, whereby the learned Subordinate Judge set aside an ex parte decree passed against the petitioner subject to the condition that the petitioner shall pay Rs. 100.00 as costs and shall also deposit the decretal amount in the Court by 20th October, 1972, failing which the application for setting aside the ex parte decree filed by the petitioner shall stand rejected.
(2) The petitioner, along with one Ram Nath, purchased a truck from Respondent 1 herein, M/s. Goodwill India, 17/B, Asaf Ali Road, New Delhi, and respondent 3, Jai Parkash, was the guarantor. On a dispute arising between the parties, the same was referred to arbitration. The arbitrator made an award and applied for making the award a rule of the Court. Shri H. S. Bakshi, Subordinate Judge 1st Class, Delhi, issued notice to the petitioner. As the service could not be effected, substituted service was ordered and effected by publication in an English daily, 'Tribune'. According to the petitioner, the said newspaper has circulation in the Punjab region while the petitioner is a resident in Uttar Pradesh. After the said substituted service, the Court made the award a rule of the Court and an ex parte decree was passed against the petitioner in terms of the award.
(3) Respondent 1, the decree holder, applied for execution of the decree by attachment of a land and other property belonging to the petitioner. As soon as the petitioner came to know about the ex parte decree, he filed an application on March 17, 1970, under Order 9 rule 13 of the Code of Civil Procedure praying that the ex parte decree may be set aside. The executing court framed the following two issues:-
'1. Was the applicant not properly served 2. Is the application within time?'
(4) After recording evidence, the executing court decided both the issues in favor of the petitioner by an order, dated October 10, 1972. However, while allowing the application filed by the petitioner, the learned subordinate Judge imposed a condition in the following terms:-
'IN view of my above discussion, the application under consideration is allowed on the condition that the applicant shall pay Rs. 100.00 as costs and shall also deposit the decretal amount in the Court by 20-10-72, failing which the application shall stand rejected.'
Aggrieved by the second part of the condition that he should deposit the decretal amount, the petitioner has filed the present civil revision.
(5) Shri S. K. Bagga, learned counsel for the petitioner, contended that when it was proved and the same was found by the court that the applicant was not properly served and the ex parte decree was wrongly obtained, the learned Subordiate Judge ought to have set aside the ex parte decree unconditionally, and that in any case he ought not to have made it a condition in addition to payment of costs of Rs. 100.00 that the decretal amount should be deposited by the petitioner without even giving any reasons for imposing such an onerous condition. The learned counsel stated before me that the petitioner does not object to the imposition of the term as to payment of Rs. 100.00 as costs, but challenges only the imposition of the other term of depositing the decretal amount.
(6) Order 9 Rule 13 of the Code of Civil Procedure provides that 'in any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, 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, and shall appoint a day for proceeding with the suit : Provided that . . . . . '
(7) It is clear that under the above provision the Court has to satisfy itself that the summons was not duly served or that the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing, before it can set aside the ex parte decree passed against the defendant. The words 'shall make an order setting aside the decree' show that where the Court is so satisfied, it has got to make an order setting aside the ex parte decree. It may, however, impose such terms as to costs, payment into Court or otherwise as it thinks fit. Karumuri Surayya v. Thadepalli Pushpawalli Thayaramma and other, : AIR1950Mad618 , Chandra Reddi J. held as under:-
'THE wording 'upon such terms as to' in the Rule should be read as applying not only to costs but to 'payment into Court or otherwise as it thinks fit' as well. The Rule does not restrict the power of the Court to impose conditions for setting aside an ex parte decree to payment of costs only. The wording of the Rule is comprehensive enough to include conditions as to payment into Court of decretal amount or such other conditions as the Court thinks fit.'
(8) Thus, the Court has jurisdiction to direct the defendant to pay costs or to pay the decretal amount into Court as a condition for setting aside the ex parte decree. As regards the circumstances in which a Court may impose a term that the defendant should deposit the decretal amount, a Division Bench of the High Court of Rajasthan, K. N. Wanchoo C.J. and D.S. Dave J., pointed out in Chhagan Raj and others v. Sugan Mal and another, as under:-
'AS to the question whether the Court was right in imposing the term relating to the deposit of the decretal amount or giving security for the same, that depends upon the circumstances of each case. Generally speaking costs should be sufficient to compensate the decree-holder in such cases if any damage is suffered by him on account 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. Here again, it is not in the arbitrary power of the Court to impose a condition as to payment of the decretal amount or for giving security for the same without giving any reasons for such a course. Further, it is well settled that ven where a further condition besides costs is imposed, it should not be of an onerous nature. Whether the condition is onerous or not will again depend on the circumstances of each case. But again, generally speaking where a defendant is able to show that he had sufficient reasons for not appearing on the date fixed and there is nothing on the record to show that the defendant had been acting in such manner as to require some further condition being imposed on him, the Court should not impose any further condition besides the condition relating to costs.'
(9) In that case, the lower court had imposed a condition as to payment of the decretal amount arbitrarily without giving any reasons why it thought that such further condition should be imposed in that case, and the learned Judges of the High Court held that the lower court had acted with material irregularity in the exercise of its jurisdiction by arbitrarily imposing a condition as to payment of the decretal amount without giving any reasons why it was necessary in addition to the usual condition as to payment of costs.
(10) I may also point out that in the decision in Alimohammad v. Manaklal Ratanlal, : AIR1960MP234 V. R. Newaskar and H. R. Krishnan JJ. held that if there has been no due service of summons, the defendant was not to blame, and the order under Order 9 Rule 13 should be unconditional, and that in every case where the propriety of imposing a condition and its reasonableness are in issue, the question would be, is the defendant negligent in some measure at least and is the condition proportionate to the seriousness of the omission?
(11) In the present case, the learned Subordinate Judge held on issues I and 2 that the applicant had not been properly served, and that the application filed by him under Order 9 Rule 13 was within time. In view of the said findings, generally speaking, an order setting aside the ex parte decree should have been made. The learned Subordinate Judge, however, thought it fit to make the order conditional. The applicant was asked to pay Rs. 100.00 as costs, and also to deposit the decretal amount of about Rs. 6100.00 in the Court. No reason has been given as to why it was necessary to impose the said conditional deposit of the decretal amount in addition to the usual condition as to payment of costs. As observed by the Division Bench of the High Court of Rajasthan, with which I respectfully agree, the power conferred by Order 9 Rule 13 is not to be exercised in an arbitrary manner, and where the Court thinks fit to make the order setting aside the ex parte decree conditional, it should set out the reasons for imposing a term of deposit of the decretal amount in addition to the usual condition as to payment of costs. In the absence of such reasons in the order, the term as to deposit of decretal amount has to be regarded as onerous and unreasonable, and its imposition cannot but be regarded as arbitrary. Such an arbitrary imposition of the term, as held by the Division Bench of the High Court of Rajasthan, amounts to a material irregularity in the exercise of the jurisdiction of the Court.
(12) For the foregoing reasons, the Civil Revision is allowed to the extent that the condition of deposit of the decretal amount is deleted from the order of the learned Subordinate Judge, dated October 10, 1972. The condition of payment of Rs. 100.00 as costs shall, however, remain. If the said amount of Rs. 100.00 had not already been paid, the applicant, Dharam Vir Singh, is granted time to pay the said amount of Rs. 100.00 on or before February 1, 1974, to the decree-holder, M/s Goodwill India Ltd, as costs. The parties are, in the circumstances, directed to bear their own costs in this Civil Revision.