KHEM CHAND Vs. HARI SINGH

JUDGEMENT

(1.) This is a Revision directed against the judgment and decree recorded in a suit for recovery of Rs. 9,495.00 which was decided under 0. 37 of the Civil P. C. Leave to defend was refused and a decree for Rs. 7,000.00 with costs was passed on 6th May, 1977. The present Revision is under S. 115 of the Civil P. C. There was some doubt regarding the maintenance of a Revision under S. 115 of the Code in a case like the present, because at one time some Courts had taken the view that a Revision could be brought to the High Court in a case where an appeal lay to some other Court and even a decree could be set aside in this way. This doubt has now been set at rest by the amendment to the Civil P. C. effective from 1st Feb. 1977.

(2.) In order to explain the doubt and its resolution, it may be useful to refer to the opening words of S. 115 of the Code which read :

(3.) The suit from which the present Revision has arisen was instituted on 17th Feb, 1977, which was after the Civil P. C. (Amendment) Act, 1976 had come into force. This meant that the present suit had to be tried under 0. 37 of the Code as newly amended and not under O. 37 as it previously existed. The mistake made by the Court was to issue summons under the old Code. There is a clear admission in the order sought to be revised that the summons was not issued In the amended form No. 4 appearing in Appendix B to the First Sch. of the Code, but was issued in the previous form. The difference in the two procedures is quite marked. Under the Act as it applied before 1st Feb. 1977, the defendant had to appear and file an application for leave to defend, but in the present form only appearance has to be put in and leave to defend has not to be applied for immediately. Unfortunately, the Court served the wrong documents with the result that the defendant was forced to apply for leave to defend within ten days as he was required to do under the amended Civil P. C. The Court thereupon refused to hear the defendant's plea that he had been served wrongly and he should be given more time. In fact, he should have been allowed to file an application for leave to defend after the plaintiff had taken out a summons for judgment as is required by the amended procedure.