This order shall dispose of Revision Petitions Nos. 634/1976 and 636/1976 because similar questions of law and facts are involved therein. -
2. The relevant facts are, that respondent instituted two suits fort e recovery of Rs. 7,430.09 and 7,666.67 in the Court of learned Civil Judge, Rawalpindi against the petitioner. The suits were decreed ex parte on 13-12-1966. The petitioner moved applications for setting aside the ex parte judgment and decree under Order IX, rule 13, C. P. C. On the ground that the decrees were procured on the basis of false reports ,made by the process --server.
The learned trial Court vide his orders dated 12-7-1974 admitted the applications subject to his depositing decretal amount in Court in each case within a period of two months. The petitioner failed to deposit the amount and the learned Civil Judge summarily rejected the aforementioned applications on 20-1-1974. Aggrieved by the aforementioned orders, the petitioner chal--lenged them in appeals before the learned District Judge, Rawalpindi, but he also dismissed the same on 13-6-1975.
3. Learned counsel for the petitioner contended that the trial Court had no jurisdiction to make the order of deposit of decretal amount as a condition precedent for the determination of petitioner's applications under Order IX, rule 1, C. P. C. On merits. It was contended that the impugned orders suffer from material irregularity and are apt to be interfered with in the revisional jurisdiction of this Court.
4. Learned counsel for the respondent, on the other hand, submitted that the civil Court was competent to order deposit of the decretal amount as a condition for admission of the petitions. He referred to Order XXI, rule 23-A, C. P. C. In support of his contention.
5. I have given full consideration to the arguments advanced by learned counsel for the parties and find that the orders passed by the Court below are liable to be set aside because the same are not sustainable under the law. Ordrer IX, rule l3, C. P. C. Provides as under :- "In any case in which a decree is passed ex parte against a defendant he may apply to the Court by which the decree was passed for an order to set it aside ; and if he satisfies the Court that the summons was not duly served or that he was prevented by any sufficient causes 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 : Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also : Provided further that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied, for reasons, to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim."
If is clear that in case the civil Court is satisfied that the applicant did not appear for sufficient cause when his suit was called for hearing, the Court is competent to set aside ex parte decree on such terms as to costs which can be directed to be paid in Court, otherwise it has no jurisdiction to direct the applicant to deposit decretal amount as condition for admission of the application.
6. Similarly, the provisions of Order XXI, rule 23-A, C. P. C. Are also not attracted in the circumstances of the case. Order XXI, rule 23-A, C. P. C. Provides :- "23-A. Deposit of decretal amount, etc.-An objection by the judg--ment-debtor to the execution of a decree shall not be considered by the Court unless :-
(a) In the case of a decree for the payment of money, he either deposits the decretal amount in Court or furnishes security for its payment ; and
(b) In the case of any other decree, he furnishes security for the due performance of the decree."
Obviously these provisions of law are not relevant in the circumstances of the instant case because the civil Court passed the impugned order on an; application under Order IX, rule 13, C. P.
C. And not on an objection petition filed by the judgment debtor to the execution of decree.
Undoubtedly the civil Court has no jurisdiction to impose the condition for the deposit of the decretal amount for determination of the application under Order IX, rule 13, C. P. C. The learned District Judge also materially erred in not interpreting the relevant provisions of law correctly and for that reason his orders are also not sustainable.
7. For the reasons mentioned above, these revision petitions are accepted. The impugned orders passed by the Courts below are set aside, with no order as to costs. The learned Civil Judge is directed to dispose of the applications under Order IX, rule 13, C. P. C. On merits within three months.