This civil miscellaneous appeal is filed against the order dated 5.1.2004 in I.A.No.1036 of 1999 in O.S.No.633 of 1989 on the file of the First Senior Civil Judge, City Civil Court, Hyderabad.

The respondent filed the suit against the appellant for recovery of a sum of Rs.8,75,580/-. The suit was decreed ex parte on 19.7.1991. The appellant filed I.A.No.1036 of 1999 under Order IX Rule 13 C.P.C. to set aside the ex parte decree. The trial Court dismissed the I.A. on the ground that though the appellant was properly served with summons, he has not chosen to respond and it does not deserve any indulgence of the Court.

Learned counsel for the appellant submits that along with I.A.No.1036 of 1999, the appellant filed I.A.No.727 of 1993, under Section 5 of the Limitation Act, to condone the delay in presenting the application under Order IX Rule 13 C.P.C. and after extensive discussion, that I.A. was allowed through orders dated 18.10.1994. He contends that once the Court was satisfied about the condonation of delay, in presenting the application under Order IX Rule 13 C.P.C., ordering of the same is almost a matter of course. Learned counsel urges that the appellant has, in fact, been required to pay the costs as a condition for condonation of delay and in that view of the matter, the order of the trial Court cannot be sustained.

Learned counsel for the respondent, on the other hand, submits that the suit was filed way back in the year 1989 and the appellant refused to participate in the proceedings on one pretext or the other. He submits that the trial Court has taken into account the conduct of the appellant from time to time and, having been satisfied that there were no bona fides on the part of the appellant in not prosecuting the matter, dismissed the I.A. He submits that the order does not warrant interference.

The appellant was set ex parte in the suit on the ground that it did not turn up even though the summons were served. Thereafter, an ex parte decree was passed. The appellant filed an application under Order IX Rule 13 C.P.C. together with an application to condone the delay, in the year 1993. It was pleaded that the partner was very much present in the business premises and despite the same, the bailiff is said to have affixed the notice on the door of the premises. The trial Court condoned the delay through its order dated 18.10.1994 by stipulating a condition that the appellant shall deposit one-fourth of the decretal amount as well as the costs. Aggrieved by the same, the appellant filed CRP.No.4328 of 1994. The CRP was allowed by this Court on 13.11.1997 and the condition as to depositing of part of the decretal amount was set aside. The same paved the way for the trial Court to take up the application under Order IX Rule 13 C.P.C.

The trial Court dismissed the I.A. mainly on the ground that the appellant failed to establish that it has transacted business on 31.1.1990 and 1.2.1990. These dates became relevant for the reason that the bailiff reported to the Court that on those two days he tried to serve the notice of the appellant and since the premises was closed, he affixed the notice on the door. The trial Court also referred to various decisions rendered by different High Courts.

The ground pleaded by the appellant is that its partner was not personally served with any notice and that it was set ex parte on the ground that though the notice was served by means of affixing it on the door, it has not chosen to respond. There would have been justification for the trial Court to find fault with the appellant, in case the summons was served upon its partner, personally. When, admittedly, the service of notice is effected by affixing it on the door, the appellant cannot be expected to get the immediate or direct knowledge of it. At any rate, once the trial Court took the view that the reasons pleaded for delayed submissions of the application to set aside the ex parte decree are satisfactory, ordering of such application would almost to be a matter of course. Stronger and more satisfactory reasons are necessary to explain the delayed filing of application under Order IX Rule 13 CPC., compared to those, needed to explain the circumstances that resulted in an ex parte decree. From that point of view, the approach adopted by the trial Court cannot be said to be proper. The application filed by the appellant under Section 5 of the Limitation Act has already been allowed and he has been made to suffer detriment of paying the costs running to Rs.12,000/-. The appellant cannot be relegated to a worse position after the application to condone the delay was allowed. In fact, it is always advisable to consider and dispose of both the applications simultaneously. Hence, the ex parte decree deserves to be set aside.

Learned Counsel for the respondent, on the other hand, submits that the suit was filed way back in the year 1989 and the appellant had the benefit of selling the stock supplied to him, without paying the cost of it to the respondent. He submits that whatever may have been the circumstances that existed till the suit came to be decreed ex parte, the appellant has protracted the proceedings on one pretext or the other since 1993 and the respondent cannot be made to suffer. He appeals to the Court to direct the appellant to deposit certain amount, as a condition precedent, for setting aside the ex parte decree.

Till recently, it used to be the law that the conditions, as to deposit of part of the decretal amount, cannot be imposed while setting aside the ex parte decree. It was observed that such a course of action would result in a situation of contradiction in terms. However, in Ramesh v. Ratnakar Bank Ltd (2001 AIR SCW 4759 (2), the Supreme Court held that it is permissible for the Courts to impose such conditions while setting aside the ex parte decrees. The same view was taken in V.K. Industries v. M.P. Electricity Board ((2002) 3 SCC 159 [LQ/SC/2002/296] ). A Division Bench of this Court in Vakiti Prahbakar Reddy v. Tenali Mohan Rao (2003 (2) ALT 76 (D.B.) reviewed the entire law on the subject and held that it is permissible for the Courts to impose such conditions, depending on the facts and circumstances of the case.

As observed earlier, the suit was filed in the year 1989 and the transaction between the parties is commercial in nature. While denying the benefit of the ex parte decree to the respondent, its interest needs to be protected. The suit is filed to recover a sum of Rs.8,75,580/- with interest. 15 years have elapsed after the suit was filed. Taking the totality of the circumstances into account, this Court is of the view that ends of justice would be met if the appellant is required to deposit a sum of Rs.5,00,000/- (Rupees Five lakhs only) within six weeks from today, as a condition precedent, for setting aside the ex parte decree.

The civil miscellaneous appeal is accordingly allowed, setting aside the order under appeal. Consequently, I.A.No.1036 of 1999 in O.S.No.633 of 1989 shall stand allowed on condition that the petitioner deposits a sum of Rs.5,00,000/- (Rupees Five lakhs only) into the trial Court within six weeks from today. If the decree is set aside on compliance with the condition, the trial Court shall endeavour to dispose of the suit as early as possible and not later than six months from the date of depositing of the amount, stipulated in this Judgment. There shall be no order as to costs.