' This Civil Miscellaneous Appeal has been filed against the order, dated 28th July, 1983 passed by the IVth Senior Civil Judge, Karachi, and the short point involved in this appeal is whether an order for furnishing security in the sum of the decrial amount as a condition precedent to consideration of J/D application under Order IX, rule 13 is warranted by law.
2. The appellant and respondent entered into a contract on 9th May, 1977 where under the respondent was to raise construction on a Plot No, G-10 and 9/4 situated in Jinnah Street, Ran chore Lines, Karachi (belonging to the appellant. The agreement contained an arbitration clause.
Disputes arose between the parties and the respondent raised a claim of Rs, 1,16,000 against the appellant.
' The matter was referred to an arbitrator by the respondent lodging a claim of Rs, 1.16,000 before the Sole Arbitrator Mr. Ismail Padhiar. The Sole Arbitrator gave an ex pane award awarding the claim of respondent to the extent of Rs, 21,000 with interest at the rate of Rs, 25% from the date of agreement to the date of payment.
' The award was filed in the Court of VIth Senior Civil Judge, Karachi to be made a rule of the Court.
On 28th February, 1982 the award was confirmed and made a rule of the Court, and a decree was ordered to be made out in terms of the award.
3. Two applications were filed against this order by the appellant. The first was an application under Order IX, rule 13, C.P.C. Praying for setting aside the decree, dated 28th February, 1982 as it was passed ex parte and without notice to the appellant. The other was an application under Order XXI, rule 64, C.P.C, praying for stay of execution of the ex parte decree.
' Both these applications have been dismissed by the learned IVth Civil Judge, Karachi by a single order, dated 28th July, 1983 giving rise to a grievance resulting in this appeal. It may be mentioned that this appeal has been filed only against the portion of the order relating to the dismissal of application under Order IX, rule 13, C.P.C. And the learned counsel for the appellant has been frank enough to make that statement from bar.
4. The learned counsel for the appellant has urged that the learned Judge has dismissed the appellant/J.D. Application under Order IX, rule 13, C.P.C. On the grounds : " The J.D. Was directed to furnish security to the extent of Rs, 63,000 (Rs, sixty-three thousand) up to 22nd May, 1983 on his application under Order XXI, rule 26 read with section 151, C.P.C. Dated 26th April, 1983 but J.D. Failed to deposit the abovementioned amount, hence his/J.D. Application under Order IX, rule 13, now cannot be considered, with the result, I reject the J.D. Application under Order IX, rule 13, C.P.C."
' The learned counsel for the appellant contends that the application ought to have been disposed of on merits. The dismissal amounts to entertain and adjudicate a cause without any legal justification as no order for security could be passed in this case. The learned counsel seeks support from a case reported in NLR 1981 Civil 39. The facts of the case were exactly similar to the present case. Two suits were filed and were decreed ex parte. The J/D filed applications under Order IX, rule 13 for setting aside the ex parte decrees. The Court was willing to allow application but subject to the J.D. Depositing the decretal amounts in Court ; and on failure of the J.D. To deposit the decretal amounts the applications under Order IX, rule 13 were dismissed, by the trial Court. The first appeal filed against this order was also dismissed by the District Judge, Rawalpindi. Against this order J.D. Filed the revision in the High Court. Dealing with contentions'of the two opposing counsel the Court held :
(3) Learned counsel for the petitioner contended that the trial Court had no jurisdiction to make the order of deposit of decrial amount as a condition precedent for the determination of petitioner's applications under Order IX, rule 13, 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 decrial 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. Order IX, rule 13, 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 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 : ' 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."
' It 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.
' After quoting the provision of Order IX, rule 13, C.P.C. The learned Judge observed : "Obviously these provisions of law are not relevant in the circumstances of the instant case because the civil Court passed the impugned orders on an application under Order 1X, rule 13, C.P.C. And not on an objection petition filed by the judgment-debtor to the execution of the 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."
' I fully agree with the view expressed by the learned Judge. The rationale behind the findings seems to be that the effect of an order on an application under rule 13 of Order IX is not to obstruct the passage of a decree in execution proceeding but to get rid of the decree itself. The appellant is asking for his being put in the position which existed before the decree was passed. It is a prayer for his restoration to a status quo ante. Actually he is praying to be allowed to appear and be given a hearing before a decree should he passed. He is asking the Court to pass an order accepting his explanation for his non-appearance on the date of hearing. As such the application does not fall within the scope of Order XXI, rule 23-A, C.P.C. The provision of Order XXI, rule 23-A are as follows : "23-A. Deposit of decretal amount, etc.-An objection by the judgment-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."
' It is evident that once the status quo ante is restored he. Would not remain a judgment-debtor but would be entitled to contest the claim and make an effort that no decree should at all be passed.
The provision of Rule 23-A would become operative only after a decree has been passed and the defendant has been relegated to the position of a judgment-debtor and is asking for stay of execution of an effective, operative decree in existence. Here there is no prayer for stay of execution of the decree.
5. The learned counsel appearing for the respondent frankly conceded on this point but the learned counsel objected to this appeal on other grounds and he formulated his objections in the following terms : "If it was a case under Order IX, rule 13 then the condition of furnishing security was not proper and the provisions of rule 23-A of Order XXI could not be invoked."
The learned counsel however raised other objections to the maintain ability of this appeal on other grounds. I will not examine those objections. His first objection is that the order under Order IX, rule 13, C.P.C. Came to B be passed in arbitration proceedings. The decree was passed in terms of the award. As such section 17 of the Arbitration Act is a bar to any challeng to such a decree by way of appeal. Section 17 of the Arbitration Act is a follows : "17. Judgment in terms of award.-Where the Court sees no cause to remit the award or any of the matters referred to arbitration for consideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with, the award."
' The learned counsel contends that the words in section 17 and no appeal shall lie from such decree except on the ground that it is in excess, of, or not otherwise in accordance with, the award.
6. In his analysis of this section the learned counsel is working under some misconception of facts of the case. The appellant has not filed this appeal against the decree passed in terms of the award. It is an appeal against the order passed on application under Order IX, rule 13, C.P.C. This application was dismissed by the learned Judge on a wrong and erroneous reading of law. In other words if security was furnished the learned Judge would have to allow the appellant to file the objections to the award and any order passed on these objections would be the order under section 17 of the Arbitration Act and immune from any attack by way of appeal except under the Arbitration Act. But as stated above it is not an order passed under section 17 of the Arbitration Act but under Order IX, rule 13, C.P.C. And in my opinion such an order does not enjoy immunity from being challenged in appeal under the C.P.C.
The other leg of the objection to the maintainability of the appeal was appeal was competent only under section 39 (vi) of the Arbitration Act. This objection is also not sustainahle for the same reason. The order, dated ,D 28th July, 1983 is not an order "setting aside or refusing to set aside an award", on objections under sections 30, 33 of the Arbitration Act. This objection therefore also fails.
7. The next objection of the learned counsel was that under Order XLIII, rule 1(d) appeal could lie only from an order passed on an application under Order IX, rule 13, filed to set aside an ex parte decree passed in a case in which appeal lies from the decree. In the present case the application was filed in a case where main decree was open to appeal under section 39 of the Arbitration Act.
Therefore this objection is also not well-founded.
8. The result is that this appeal is allowed with costs. The order rejecting the application under Order IX, rule 13, dated 28th July, 1983 is set aside. The learned Civil Judge should dispose of the application under Order IX, rule 13, C.P.C. According to law without any condition calling upon the appellant to furnish security.