Dawson-Miller, C.J:— This is an application in revision asking us to set aside an order of the learned Judicial Commissioner of Chota Nagpur, affirming an order of the Subordinate Judge in which he dismissed an application for the rehearing of a case in which an ex parte decree was obtained by the plaintiff on the ground that the defendant, who had been granted a rehearing, had failed to deposit a sum of Rs. 500 in Court in compliance with the terms upon which the rehearing was originally granted. It appears that the defendant himself was unwell, suffering from influenza, when the case was called on before the Subordinate Judge and in his absence a decree was made ex parte against him in favour of the plaintiff. The suit was brought on the basis of a mortgage to recover a sum of Rs. 2,500. On 5th April the defendant applied to the Subordinate Judge to have the case re heard, on the ground that he was ill and could not attend the Court at the time when the case was originally called on. The learned Judge accepted his story that he was ill as it was corroborated by another witness, but he apparently had a certain amount of doubt as to the defendant's inability to take steps to see that he was represented and he called attention to the fact that no medical certificate had been produced. In these circumstances however he granted the rehearing application upon condition that the defendant should deposit a sum of Rs. 500 out of the decretal amount in Court within a week. That time expired without the money being deposited and when the case came before the learned Subordinate Judge again, no explanation being given why the money was not deposited, he dismissed the rehearing application.
2. From that an appeal went to the Judicial Commissioner, who refused to interfere with the discretion of the learned Subordinate Judge. From that order of the learned Judicial Commissioner the present application is brought in revision.
3. It has been urged that under O. 9, R. 13, the learned Judge had no power to order the defendant to pay anything into Court except costs, and it is contended that the wording of that rule should be read as relating to the payment of costs only. The words of the rule are;
“If he (the defendant) satisfies the Court that 4 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.”
4. It seems to me that the terms which the Court has power to impose as a condition for restoring the case for rehearing are of a threefold nature. The Court may, first of all, impose conditions as to the payment of costs; it may, secondly, impose conditions as to payment into Court and, in my opinion, this covers the payment into Court of the decretal amount or some portion thereof or payment into Court of costs; and, thirdly, it may impose other conditions as it may think fit and whilst at the same time in cases where there is no default on the part of the party asking for a rehearing, such as for instance, where be has not been duly served, it would not be equitable for the Court to impose any conditions at all, nevertheless in other cases, such as the present where it is not absolutely clear that the illness of the defendant prevented him being represented at the trial, it is well within the competence of the Court to impose terms such as were imposed in the present case.
5. The payment into Court of a sum equal to about one-fifth of the decretal amount imposes no real hardship upon the defendant and, in my opinion, it was a very proper order to make and I see no reason therefore for interfering with the discretion of the Subordinate Judge in the present instance. I think that this application ought to be dismissed with costs. Hearing fee two gold mohurs.
6. Das, J.:— I agree.
V.S/R.K
7. Application dismissed.