Dixit, J.:—

This is an appeal from an order made by the Civil Judge, Senior Division, Ahmedabad, setting aside an ex parte decree on certain conditions set out in the order.

On or about October 2, 1946, the first respondent filed against the appellant and the second respondent a suit to recover a sum of Rs. 2,44,702-8-6. The suit was based upon a promissory note executed by the appellant in favour of the first respondent on or about December 21, 1944, for a sum of Rs. 3 lakhs. The suit was fixed for hearing on December 14, 1951. It is a remarkable circumstance that a suit filed on October 2, 1946, should have come up for hearing before the lower Court on December 14, 1951, that is to say, after an interval of a period of five years. On that date the appellant was absent. The second respondent contested the suit and on December 27, 1951, the trial Court passed in favour of the first respondent a decree for the amount claimed with interest and costs. Against the appellant the decree was an ex-parte decree and against the second respondent the decree was after contest.

On January 15, 1952, the appellant, that is to say, the original first defendant, field this application to have the ex parte decree set aside and the Court below made in his favour an order setting aside the ex parte decree on the appellant furnishing security for Rs. 3 lakhs and requiring the appellant to furnish the said security within a period of two months. Incidentally, the lower Court also set aside the decree as against the second respondent. Feeling aggrieved by the order the first defendant has come up in appeal.

Mr. S.M Shah appearing for the first respondent has taken a preliminary objection which is that no appeal lies in this case. The order made in favour of the appellant is an order under O. IX, r. 13 of the Code of Civil Procedure. Under O. XLIII, r. 1(d) an appeal is provided from an order under r. 13 of O. IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte. In this case the application has been granted. Therefore, clearly, no appeal lies under O. XLIII, r. 1(d). The preliminary objection is, therefore, well founded and must prevail.

But Mr. N.C Shah for the appellant says that this appeal should be converted into a revisional application. It is now conceded that no appeal lies and I accordingly allow this appeal to be converted into a revisional application, subject of course to payment of adequate court-fees which Mr. N.C Shah for the appellant has undertaken to pay. I will, therefore, dispose of this matter on the basis of a revisional application.

The question to be decided is whether the order complained of is in accordance with O. IX, r. 13 of the Code of Civil Procedure. So far as material O. IX, r. 13 provides:

“…and if he (the defendant) 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…”

The requirement of r. 13 of O. IX is that the defendant must show that he was prevented by a sufficient cause from appearing when the suit was called on for hearing. In this case there is evidence which has been accepted by the Court below and which is not disputed in this proceeding that on December 14, 1951, the appellant was prevented from appearing when the suit was called on for hearing because the first defendant was taken ill and was then living in Bombay. It is, therefore, established upon the evidence, and which is not disputed, that there was sufficient cause for the first defendant for not appearing when the suit was called on for hearing. So far the matter is simple. But Mr. N.C Shah appearing for the first defendant contends that in this case the Court below was wrong in directing the applicant to furnish security in the sum of Rs. 3 lakhs. The contention is that under O. IX, r. 13 the only power which the Court has is the power to direct the defendant to pay the costs and not to pay the amount of the decree. He relies upon what he calls the punctuation as occurring in the rule. His argument, if I understand it correctly, is like this. He says that the only terms which the Court can impose are the terms as regards costs and the expression “payment into Court or otherwise” is referable to costs and not to the payment of the decretal amount. For this interpretation Mr. N.C Shah is unable to produce any authority and it seems to me that there can be no authority in his favour. The language of O. IX, r. 13 is, I think, very comprehensive. The Court has power to impose upon the defendant certain terms and those terms have relation to the payment of costs or to the payment of the decretal amount—either in whole or in part or any other conditions which the Court may think fit to impose. The view which I take is supported by the decision of the Madras High Court reported in Surayya v. Thayaramma.(3) It is enough, I think, to quote the head-note in that case which is as follows:

“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 or decretal amount or such other conditions as the Court thinks fit.”

This view is also in accordance with the principle of the ruling in the case of Shyam Lal Sahai v. Ram Narayan Lal Seth.(4) I accordingly hold that under O. IX, r. 13 the Court has power to impose upon the defendant the condition of the payment of the decretal amount either in whole or in part.

The next question is whether the condition which has been imposed by the Court below is a reasonable condition. The expression “such terms as to costs, payment into Court or otherwise as it thinks fit” suggests that the matter is one of discretion, but the discretion is to be exercised in a judicial manner. The condition to be imposed, therefore, upon a defendant should be reasonable and not oppressive. What condition should be imposed in a particular case must depend upon the facts of each case. In a particular case the Court may come to the conclusion that the defendant should pay into Court the entire amount. In another case the Court may come to the conclusion that it will suffice if the defendant is ordered to pay a portion of the decretal amount, and in a third case it is conceivable that the Court may come to the conclusion that the ends of justice will be met if the defendant is made to pay the amount of costs only. The true principle seems to me to be that while the Court has got power to impose conditions upon a defendant, including the condition of the payment of the entire amount of the decree, the conditions to be imposed should be reasonable and should not be oppressive or at least should not be conditions which will result in the defendant not being able to defend the suit.

The point to be decided, therefore, is whether in this case the condition imposed upon the applicant is a reasonable condition. The suit giving rise to the ex parte decree was based upon a promissory note of the year 1944. The suit was filed in 1946 and ended in a decree dated December 27, 1951. The application to set aside the ex parte decree was made on January 15, 1952, and the application was allowed on September 9, 1952. Bearing these dates in mind, the interval between the incurring of the liability and the decree which makes the defendant liable to pay the decretal amount is, roughly speaking, a period of eight years and it is a very large amount which, according to the calculations made by the learned Advocates appearing for the parties, is in the neighbourhood of a sum of Rs. 3 lakhs and a little more. The learned trial Judge gave certain reasons in support of the order which he made imposing the condition of the security of Rs. 3 lakhs. The reasons were these. He said first that the monetary condition of the applicant was going down. The second reason given by him was that the applicant had adopted delaying tactics. The third reason given by him was that looking to the nature of the contentions taken up by the applicant it was necessary to impose upon him the condition of the payment of the entire decretal amount by requiring the first defendant to furnish security for that amount. It is to be noted that when the applicant was put into the witness-box and was cross-examined by the advocate on behalf of the first respondent, no questions were put to the applicant about his monetary condition. In the affidavit filed by the first respondent in answer to the application made by the first defendant it was stated that the first defendant did not own any tangible immoveable property. No suggestion was made to the first defendant when he gave evidence. It was also suggested in the affidavit that the first respondent was reliably informed that the first defendant was liable to pay heavy income-tax dues to the Government of India. No suggestion was made in the evidence of the first defendant by the first respondent to that effect. In the absence of any effective cross-examination upon those points, it seems to me that the evidence of the first defendant stands and the only crose-examination was upon the point as to whether the first defendant had a sufficient cause for not being present when the suit was called on for hearing.

Mr. S.M Shah who appears for the first respondent argues that this is a revisional application and under s. 115 of the Code of Civil Procedure I cannot go into the reasons which have been given by the learned Judge in support of the view which he has taken. If the reasons given by the learned Judge were based upon the evidence in the case, I should not have felt the slightest difficulty in accepting the contention of Mr. S.M Shah. But, in my opinion, the reasons given by the learned Judge are reasons which are not to be found in the evidence of the first defendant. If the first defendant does not own any immovable property and the amount due in the first respondent is a large amount of Rs. 3 lakhs, that is a good ground for requiring the first defendant to furnish security even for the entire amount. Again, if heavy income-tax dues were to be paid by the first defendant to the Government of India and that he was in default, that again would be a good ground for requiring the first defendant to pay a substantial portion of the decretal debt or to furnish security in respect of that amount. But to say that the monetary condition of the first defendant was going down and that he was adopting delaying tactics is not, in my opinion, a sufficient reason for requiring the first defendant to furnish security to the extent of Rs. 3 lakhs. In most cases the monetary condition of a defendant generally may go down. Equally in most cases a defendant generally adopts delaying tacties. But if the law of procedure allows him to adopt delaying tactics, that, I think, is no reason why the first defendant should be directed to furnish security for the entire amount of the decretal debt. These are undoubtedly adequate considerations in making a suitable order requiring the defendant to pay a substantial portion of the decretal amount or to furnish security. But, in my opinion, these cannot constitute valid reasons for holding that the defendant should, therefore, be ordered to pay the entire decretal amount. In my opinion, therefore, the order of the Court below in so far as it directs the applicant to furnish security to the extent of Rs. 3 lakhs cannot be supported, and if the order cannot be supported for the reason that there is no evidence in support of the order made, it would be open to me to interfere with the order in a revisional application. It is true that the jurisdiction of the High Court in a revisional application is of a limited character. The High Court can interfere with the order of the Court below, when it has no jurisdiction to make the order, or has illegally assumed jurisdiction or having jurisdiction has exercised the jurisdiction illegally or with a material irregularity. But if an order is made which cannot be supported, it seems to me that the High Court can interfere in revision because the case would be one when the Court below having jurisdiction has acted with a material irregularity. On this ground, I think, I must interfere with the order of the Court below in so far as the Court below has required the defendant-applicant to furnish security to the extent of Rs. 3 lakhs.

As I said in an earlier part of this judgment, the nature of the terms to be imposed upon a defendant must depend upon the facts of each case, and looking to the circumstances and the facts of the case as a whole, it seems to me that the first defendant-applicant should be required to furnish security to the extent of Rs. 1,50,000. It cannot be suggested that this order will be harsh because the liability has arisen as long ago as 1944. It cannot be suggested that this is unreasonable either because the total amount due to the first respondent would be in the neighbourhood of Rs. 3,10,000.

The order of the lower Court will, therefore, be varied and in place of the words “Rs. 3,00,000”, the words “Rs. 1,50,000” will be substituted. Subject to the aforesaid variation, the order sought to be revised against will be confirmed and the rule in this revisional application will be discharged with costs. The security should be furnished within two months from to-day.

Order varied.

M.W.P