MIAN SAQIB NISAR, J.--- The petitioners filed an application for the setting aside of an ex-parte decree, passed in favour of the respondents and against them; this application was dismissed for non-prosecution, when another application for its restoration was moved. The Court on 9.12.2003, passed the order restoring the application, but subject to the condition of deposition the decretal amount in the Court, under the provisions of Order XXI, Rule 23-A, CPC; the condition was not complied with, therefore, the Court dismissed the application of the petitioners; their appeal too has failed on 14.5.2004.
2. Heard. Rule 23-A, has been added to the Civil Procedure Code, by viriue of an amendment, brought by Ordinance XII of 1972 and the object behind the insertion of this provision, was to preclude and prevent the delays in the expeditious disposal of the executions of the decrees caused by baseless, frivolous and mala fide claims/objections of the judgment-debtor. Because such objections were creating a serious impediment in the smooth process of the execution, therefore, in order to discourage the above and to assess the bona fides and the honesty of purpose in filing of the objections to the execution, Rule 23-A was added to that part of the Civil Procedure Code, which relates to the execution of the decree. The language of the rule is also very clear, that it shall have application, only where the judgment-debtor objects to the decree in the execution; these provisions, therefore, shall normally be attracted in the proceedings falling under section 47, CPC, or under any relevant provisions of Order 21, when the decree is being resisted, by the judgment-debtor. However, this provisions has no application, where the defendant/judgment-debtor seeks the setting aside of the ex-parte decree against him, or for the restoration, because the ex-parte decree can be got set aside by the judgment-debtor as per the provisions of Order 9, Rule 12, CPC, or if applicable in certain circumstances u/s. 12(2) and the restoration can be achieved under Order 9 and section 151, CPC.
In all these provisions, there is no command of law for imposition of the condition as mentioned in section 23-A. Therefore, the Court, while considering the application for the setting aside of an ex- parte decree, etc. Has no jurisdiction to assume the power and apply the bar contained in Rule 23- A.
In the light of above, by allowing this petition, the orders impugned herein are set aside and the matter is sent to the Trial Court for deciding it in accordance with law.