L R RAJA Vs. SHA RIKHABDAS SURESH KUMAR

JUDGEMENT

(1.) The revision is against the order of the 7th Assistant Judge, Court of Small Causes, Madras in I.A.No.6767 of 1983 in O.S.No.8210 of 1981. The petitioner therein, who is the 3rd defendant is the revision petitioner.

(2.) The respondent herein filed the above suit to recover the amount due on a promissory note dated 13.7.1978 for Rs.5,000 executed by the first defendant and one L.T.Pandian, who is no more and whose heirs are defendants 2 and 3. The consideration for the promissory note was paid by cheque. The promisors paid interest for 5 months and defaulted to pay the subsequent interest due on the principal. To recover the full amount the plaintiff filed the suit under Order 37 of the Code of Civil Procedure. The defendants 1 and 2 remained absent. The third defendant, who is the revision petitioner, entered appearance and filed an application in I.A.No.11170 of 1982 for leave to defend the suit. On 17.8.1982 the said application was dismissed for default and the suit was decreed on that date. Subsequently the counsel for the third defendant revision petitioner filed an application in I.A.No. 17445 of 1982 for setting aside the order dismissing the application for leave to sue. But, this application was dismissed as not pressed. Thereafter, the third defendant filed I.A.No.6767 of 1983 under Order 37, rule 4, C.P.C. to set aside the ex parte decree dated 17.8.1982. The learned Assistant Judge dismissed the application and hence the revision.

(3.) This is a suit under Order 37 of the Code of Civil Procedure. The summary procedure laid down under Order 37 C.P.C. applies to the suits of the nature set out in sub-rule (2) of the rule 1 of Order 37, C.P.C. Rule 3 of Order 37 lays down the procedure for the appearance of the defendant and obtaining leave by him to defend the suit on disclosing such facts as may be deemed sufficient to entitle him to defend and leave shall be granted unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious. Unless the defendant obtains leave to defend, he shall not be allowed to appear at the hearing of the suit and defend the action. If the defendant does not apply for and obtain leave to defend the plaintiff shall be entitled to a judgment forthwith. Thereafter, the remedy of the defendant is to apply under Rule 4 of Order 37 to set aside the decree. Order 9, rule 13, C.P.C. has no application to such suits. Order 37, rule 4 runs thus: "After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to