K.N. Wanchoo C.J.
1. This is an appeal by Chhagan Raj and others against the order of the Civil Judge, Jodhpur, dismissing the application of the appellants for setting aside an ex parte decree.
2. The facts which have led to this appeal are these. A suit was brought against Band Mal, father of the appellants, on 9-8-1951. 21st September, 1951, was fixed for hearing. Band Mal was served, but did not appear on that day. A telegram was sent to the court by one Raghunath Mal praying for adjournment on the ground that Band Mal was ill. The court refused to adjourn the case on this telegram on the ground that it was not sent by a person who was a party to the suit.
It took ex parte evidence on behalf of the plaintiffs on that date and an ex parte decree followed thereafter on 27-8-1951. Thereupon, an application was made on 11-10-1951, for setting aside the ex parte decree. The case of Band Mal was that he was ill on that day and could not, therefore, appear in court.
The decree-holder respondents put Band Mal to proof of his allegation regarding illness. No evidence was, however, taken by the court. There was an affidavit by Band Mal but that was filed suo motu and not on the order of the court and could not, therefore, be treated as evidence under Order 19 Rule 1, which requires an order of the court. The matter came up for disposal on 15-2-1952 and the following order was passed :
'Parties' counsel, present. Arguments heard. The application of the defendant is allowed on condition that the defendant pays Rs. 30/- as costs by 25-3-1952, and also deposit the decretal amount or gives security for the same. If he does so, the application would be accepted; otherwise the application would be considered dismissed. Put up on 25-3-1952.'
The matter was considered again on 25-3-1952. On that date counsel for the defendant' stated that he was prepared to pay the costs, but was not prepared to deposit the decretal amount or give security for the same. Thereupon, the court ordered that the application for setting aside the ex parte decree be dismissed.
3. It was this order of 25-3-1952, which has been brought in appeal before us. A preliminary objection has been taken that no appeal lies in this case. It is urged, in the first place, that the order of 15-2-1952 was not an order dismissing the application and an appeal is only provided under Order 43 Rule 1(d) where an application for setting aside an ex parte decree is dismissed.
In the second place, it is urged that in any case the appeal should have been from the order of 25-2-1952 and not from the order of 25-3-1952.
4. It is true that the order of 15-2-1052, did not dismiss the application for setting aside the ex parte decree. It was a conditional order allowing the application en certain terms. Besides that, the court said that if the terms were not carried out, the application would be considered rejected.
It is urged that this was a complete order and no further order was required on '25-3-1952, for dismissal of the application. We have, however, to see what the court passing the order of 15-2-1952, thought of it. That court obviously thought that a further order was required dismissing the application and it was, for this reason that the matter was put up again on 25-3-1952, and the court passed an order actually dismissing the application on that day.
In these circumstances, we are of opinion that the real order is the order of 25-3-1952, dismissing the application and therefore an appeal lies from that order and there is no force in the preliminary objection.
5. We may also add that even if no appeal lies, a revision would lie in this case from the order of 15-2-1952, if that is treated as a complete order in itself allowing the application on certain terms. A revision would lie against it provided it is covered by the terms of Section 115 of the Code of Civil Procedure. We can, therefore, treat this appeal as a revision even if no appeal lies.
6. Coming to the merits of the case, we must say that the court below does not seem, to have understood what it had to do when dealing with an application for setting aside an ex parte decree. Order 9 Rule 13 which provides for such applications lays down that the court, if it is satisfied that the summons wag not duly served or that the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing, shall make an order setting aside the decree.
There is no doubt that the court has power to impose terms when setting aside an ex parte decree. These terms may include an order for payment of costs or even for giving security for the decretal amount or any other term which the court considers reasonable. But the court, before it comes to decide on what terms the decree is to be set aside, has got to satisfy itself that either the summons was not duly served or the defendant was prevented by sufficient cause from appearing.
In this ease the summons was served and the defendant relied on there being sufficient cause for his non-appearance on the date fixed for hearing. The order of 15-2-1952, however, does not show at all that the court did consider whether there was sufficient cause for non-appearance of the defendant. The court has no arbitrary power to set aside an ex parte decree even though there was not sufficient cause for non-appearance of the defendant.
Therefore, even if this appeal be treated as revision, it is quite clear that the order of 15-2-1952, is vitiated by material irregularity in the exercise of jurisdiction, inasmuch as the court has set aside an ex parte decree without even considering whether there was sufficient cause for non-appearance of the defendant.
7. 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 even 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.
In the present case, the court had imposed a condition as to payment of the decretal amount or giving security for the same arbitrarily without giving any reasons why it thought) that such further condition should be imposed in this case.
8. We are, therefore, of opinion that the court has acted with material irregularity in the exercise of its jurisdiction in two ways. In the first place, the court did not consider the question whether there was sufficient cause for, non-appearance of the defendant In the second place, the court has arbitrarily imposed a condition as to payment of the decretal amount or, giving security for the same without giving any reasons why this was necessary in addition to the usual condition as to payment of costs.
9. We, therefore, allow the appeal, set asidethe order of the court below and send the caseback to the Civil Judge, Jodhpur, for reconsideration of the application of Band Mal for setting aside the ex parte decree on the lines Indicated above. In view of the circumstances, weorder parties to bear their own costs of thisappeal.