Registrar, Guru Ghasidas ... vs M/S Century Coolers, Thr. Partner ...
2017 Latest Caselaw 458 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.



 WRIT PETITION NO. 5412 OF 2016


 Registrar,
 Guru Ghasidas University,
 Bilaspur (C.G.).                                              ....       PETITIONER


                     VERSUS


 M/s. Century Coolers, 
 A Registered Partnership Firm,
 through its Partner 
 Shri Shivaji s/o Sitaram Sharma, 
 Aged about 47 years, 
 having its place of Business at 
 Ghat Road, Nagpur.                                            ....       RESPONDENT


 ______________________________________________________________
         Shri C.B. Dharmadhikari, Advocate for the petitioner, 
            Shri R.M. Sharma, Advocate for the respondent.
  ______________________________________________________________

                               CORAM : Z.A. HAQ, J.

DATED : 3 MARCH, 2017.

rd

ORAL JUDGMENT :

Heard Shri C.B. Dharmadhikari, Advocate for the

petitioner and Shri R.M. Sharma, Advocate for the respondent.

2. Rule. Rule made returnable forthwith.

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3. The civil suit filed by the respondent/plaintiff for recovery

of amount of Rs.8,46,729/- alongwith interest came to be decreed

ex parte. The petitioner/judgment-debtor has filed an application

under Order IX Rule 13 of the Code of Civil Procedure praying that the

ex parte judgment and decree passed against it be set aside. The

decree-holder opposed this application on the ground that earlier also

the judgment-debtor had filed M.J.C. No.13/2010 praying for setting

aside the ex parte decree and as this M.J.C. No.13/2010 is dismissed

for want of prosecution, the subsequent application under Order IX

Rule 13 of the Code of Civil Procedure (registered as M.J.C.

No.355/2015) is not maintainable. In view of the objection raised on

behalf of the decree-holder, the judgment-debtor filed the application

(Exhibit No.8) under Order VI Rule 17 of the Code of Civil Procedure

seeking permission to amend the M.J.C. No.355/2015. The learned

trial Judge has allowed this application by the impugned order,

however, a condition is imposed that the judgment-debtor should

deposit 50% of the decretal amount. The judgment-debtor is

aggrieved by this condition imposed by the trial Court while allowing

the application (Exhibit No.8).

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4. The learned Advocate for the respondent/decree-holder

has opposed the petition on the ground that the judgment-debtor is

prolonging the matter and there is no diligence on its part in

prosecuting the application filed by it.

5. The judgment-debtor is a statutory authority. In my view,

the trial Court has exceeded its jurisdiction by imposing condition of

deposited 50% of the decretal amount while allowing the application

(Exhibit No.8) seeking permission to amend the M.J.C. No.355/2015,

therefore, clause (3) of the operative part of the impugned order is set

aside.

It is clarified that it will be open for the trial Court to

consider imposing such condition while disposing the M.J.C.

No.355/2015.

The petition is allowed in the above terms. In the

circumstances, the parties to bear their own costs.

JUDGE

adgokar