SHAH MOHAMED KHAN Vs. H N WOODFALL

JUDGEMENT

(1.) These revision petitions were first heard by Somasundaraip J., who directed them to be posted before a Division Bench, because of the conflict of decisions on the only Question which arises in these petitions, namely, whether an application for leave to defend a suit under Order 37, Civil P. C. can be entertained after a period of ten days from the date of service of the summons.

(2.) The question appears to us to admit only of one answer. Before dealing with the decisions on the question, the material statutory provisions may he first noticed. Under Order 37, Rule 3, Civil P. C,, the Court shall, upon application by the defendant give leave to appear and defend the suit, after the defendant satisfies the, Court by facts disclosed in affidavits that there is prima facie defence. Order 37, Rule 2(2) of the Code provides that in any case in which the defendant has not obtained such leave, the allegations in the plaint shall be deemed to be admitted and that the plaintiff shall be entitled to a decree. We arc not now concerned with the provision in Rule 4 of Order 37 which empowers the Court in special circumstances to set aside the decree and then give leave to the defendant to appear and defend the suit. Article 159 of Sch. I to the Limitation Act prescribes a period of ten days from the time when the summons is served for an application for leave to appear and defend a suit under Order 37, Civil P. C. So an application filed after the prescribed period of ten days would be barred by limitation and will have to be rejected under Section 3 of the Limitation Act, unless the period is extended under any of the provisions contained in Sections 4 to 25 of the Limitation Act. Section 5 is one such section. It runs thus:

(3.) In thy case before us, the application under Order 37 Rule 3 of the Code was admittedly filed out of time. That was why the defendant filed along with it another application (I. A. No. 266 of 1953) purporting to be under Section 5, Limitation Act, to condone the delay in filing the application. This was allowed. The petitioner's contention is that the court bad no power to condone the delay, as Section 5, Limitation Act, did not apply. It appears us impossible to resist this objection.