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PETITIONER: KUMUD LATA DAS

       Vs.

RESPONDENT: INDU PRASAD

DATE OF JUDGMENT:       19/09/1996

BENCH: K.RAMASWAMY, FAIZAN UDDIN, G.B.PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      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 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 application under Order  9, Rule  13 CPC  is now pending before the High Court. The  application for  restoration of  the decree  has been disposed  of with directions to deposit and to continue to deposit mense profits at the rate of Rs.2,000/- per month from the  date of  ex-parte 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 mense  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, though discretionary.      Under these  circumstances, we  think that  the learned Single Judge  was not  right in  imposing the  condition  of depositing the  mense 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 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.