1996 INSC 0852
                                             State of Orissa and Others

                                                           Vs

                                         Sibaram Baral (Simaram Barai)

                                          Civil Appeal No. 9055 of 1996

                                      (K. Ramaswamy, G. B. Pattanaik JJ)

                                                      10.05.1996

                                                        ORDER

1. Though the respondent had been served with notice on 5-8-1992, till date neither the unserved
cover nor the acknowledgement has been received back. Under these circumstances, notice must be
deemed to have been served.

2. Leave granted.

3. The only question is whether the High Court can direct the appellant to deposit the decretal
amount with costs of Rs 7500 as a condition to setting aside the ex parte decree ? The respondent
laid the suit to recover a sum of Rs 1,46,820 against the appellants. The suit came to be decreed ex
parte. The appellant has filed an application under Order 9 Rule 13 CPC to set aside the ex parte
decree. The trial court set aside the ex parte decree subject to payment of Rs 50. The High Court in
the impugned order dated 8-1-1992 in CR No. 694 of 1991 allowed the revision and set aside the
order of the trial court and directed the appellants to deposit the decretal amount and the costs.
Order 41 Rule 1(3) of CPC provides thus :

                  "Where the appeal is against a decree for payment of money, the appellant shall,
                  within such time as the appellate court may allow, deposit the amount disputed in the
                  appeal or furnish such security in respect thereof as the Court may think fit."

4. When an appellate power is exercise on an appeal filed against the decree of the trail court, the
Court exercises judicial discretion to grant conditional stay of the execution of the money decree
reasonably based on fact situation. In this case, there is no appeal before the High Court against ex
parte decree of the trial court. The trial court itself set aside the ex parte decree subject to the
payment of the cost. When revision was carried, the High Court was required to consider whether
the trial court properly considered the facts to set aside the ex parte decree and the case called for
interference. It cannot exceed its jurisdiction in directing the appellant to deposit the entire decretal
amount and also the cost of Rs 7500. The explanation given by the State is well justified as no one
takes responsibility for the lapses. Each would pass the buck on the other. Ultimately, it would be
the public justice which would suffer and put to jeopardy. Under these circumstances, the order of
the High Court is set aside and that of the trial court is restored.

5. The appeal is accordingly allowed. No costs.