KUMUD LATA DAS v. INDU PRASAD SEPTEMBER 19, 1996 [K. RAMASWAMY, FAIZAN UDDIN AND,G.B. PATTANAIK, JJ.) Code of Civil Procedure, 1908 : Order IX Rule 13-Application for setting aside. exparte decree-Proper- ty in possessio11 of daughter-i11-law-She could not live amicably with her C husband-Mother-in-law filing suit for possession on the basis of her alleged title-Appellant was set ex-parte-Applicatio11 for restoration of decree dis- posed of by the High Court by imposing condition of depositing mes11e profits for the execution of the exparte decree-Not justified-Matter remitted to High Cowt for fresh consideration of the application for setting aside the decree on merits and i11 accorda11ce with law.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 12729 of 1996. From the Judgment and Order dated 16.4.96 of the Delhi High Court in I.A. No. 8629/95 in Suit No. 3781 of 1990. M.N: Krishnamani and S.B. Upadhyay for the Appellant.
AK. Ganguli, Manish Mishra for N.S. Bisht for the Respondent. The following Order of the Court was delivered : Leave granted. This appeal by special leave arises from the order made on April 16, 1996 by the Delhi High Court in I.A. No. 8629/95 in Suit No. 3781/90. The suit was for possession of the property from the appellant. The plaintiff is G the mother-in-law of the appellant. The appellant and her husband are not able to live amicably in matrimonial tie. The proceedings for divorce are pending._The appellant is in possession of the property and, therefore, the respondent-mother-in-law filed a suit for possession on the basis of her · alleged title. The appellant was set ex parte and the applicatio1i under H Order 9, Rule 13 CPC is now pending before the High Court. The application for restoration of the decree has been disposed of with direc- tions to deposit and to continue to deposit mesne profits at the rate of Rs. 2,000 per month from the date of ex-pa1te decree, Hence, this appeal by special leave.
In view of the fact that the parties are closely related and the matter has been disposed of ex-parte, we are of the view that it is not a fit case to impose costs of depositing mesne profits from the date of ex-parte decree and to continue to deposit it as a condition to contest the application to set aside ex-parte decree. Moreover, such onerous condition is not valid, C though discretio~ary.
Under these circumstances, we think that the learned Single Judge was not right in imposing the condition of depositing the mesne profits as a condition precedent for execution of the ex-parte decree. The impugned order of the High court is accordingly set aside. There .shall be stay of D execution of the ex-parte decree. The matter is remitted to the High Court for fresh consideration of the application for setting aside the decree on merits and in accordance with law.
The appeal is allowed. No costs. E G.N. Appeal allowed.