SATISH KUMAR Vs. PRISM CEMENT LIMITED

JUDGEMENT

(1.) A short but important question about the interpretation of the provisions of Order XXXVII of the Civil Procedure Code (for short called 'the Code' arises in this civil revision under Section 115 of the Code directed against the order of the learned Trial Court dated 12.1.2001 thereby dismissing an application under Order XXXVII Rule 4 read with Section 151 of the Code moved on behalf of the defendant petitioner herein for setting aside the decree dated 28.7.1999 passed in a summary suit filed by the plaintiff-respondent for the recovery of Rs. 40,700/-.

(2.) The relevant facts which may be noticed for the purpose of the disposal of the present petition are that the respondent-plaintiff had filed a suit under Order XXXVII of the Code for recovery of Rs.40,700/- along with interest and costs and summons for appearance was issued and the defendant entered his appearance. The suit was registered as a summary suit. Later summons for judgment were served on 9.3.1999. Counsel for the defendant represented to the Court that he had received only copy of the plaint along with summons for judgment but no affidavit as required and referred to in Form No. 4A of Appendix 'B' of the Code was not received by the defendant. The Court found that the plaintiff had in fact not filed any such affidavit at the time of taking out the summons for judgment. Counsel for the plaintiff sought time to file appropriate affidavit in the Court and the matter was adjourned to 6.4.1999 when an affidavit was filed by the plaintiff, copy of which was furnished to the Counsel for the defendant. Despite receiving a copy of the affidavit, the defendant did not choose to file a leave to defend application within ten days of receiving the affidavit and the matter was adjourned to 27.2.1999 but the suit was not decreed on that date and the case was fixed for arguments on the application of the defendant for 28.7.1999 on which date there was no representation on behalf of the defendant and the Court after considering the matter, the affidavit and hearing the Counsel for the petitioner decreed the suit for a sum of Rs. 40,700/- along with Costs and interest.

(3.) The petitioner-judgment debtor moved an application under Order XXXVII Rule 4 read with Section 151 of the Code praying that the said decree be set aside primarily on the ground that there was no proper service of summons for judgment on the defendant and, therefore, he had not filed the leave to defend application and consequently the decree passed on 28.7.1999 was liable to be set aside. The application was opposed on behalf of the decree holder on the ground that the Court was fully justified in passing the decree on 28.7.1999 because the judgment debtor had failed to file any leave to defend application in the matter within stipulated period and even failed to appear in the Court for arguments on the date when the decree was passed.