JIVARAJ MOTILAL Vs. MARTHAKA PLASTIC INDUSTRIES

JUDGEMENT

(1.) The plaintiff in O.S.No.2440 of 1979, II Assistant City Civil Court, Madras is the petitioner in this civil revision. In that suit filed on 21st March, 1979 under the provisions of Order 37, C.P.C. the petitioner had prayed for a decree against the respondents herein for the recovery of a sum of Rs.25,160 with interest and costs stated to be due on three promissory notes, dated 20th August, 1975, 4th November, . 1975 and 9th March, 1976 respectively. Along with the plaint, the petitioner had also filed I.A.No.5947 of 1979 praying for an order of attachment before judgment over the house and the ground bearing door No.3, Krishna Iyer St., George Town, Madras-1. On that application, on 3rd April, 1979, notice calling upon the respondents to furnish security returnable by 19th April, 1979, was ordered. On 12th April, 1979, counsel undertook to appear and on 17th April, 1979, a vakalat on behalf of the respondents (defendants) was filed in the suit. Subsequently, on 19th April, 1979, a counter was filed on behalf of the respondents and on the next day, an affidavit of undertaking was also filed by the respondents, on the basis of which the court recorded the undertaking and closed the application for attachment before judgment. The suit was posted to 12th July, 1979 and it was then realised that though vakalat in the suit had been filed on 17th April, 1979, notice of appearance had not been given and thereupon the suit was posted to 14th August, 1979. On that day also, it was represented on behalf of the petitioner that notice of appearance had not been served and since the respondents as well as their counsel were absent, a decree was passed in the suit as prayed for with costs on 14th August, 1979. In I.A.No.4281 of 1982 filed under Order 37, rule 3(7), C.P.C. and I.A.No.17646 of 1979 preferred under Order 37, rule 4, C.P.C. the respondents prayed that the delay of 24 days in seeking to set aside the decree should be condoned and the decree passed against them on 14th August, 1979 should be set aside. In the affidavit filed in support of these applications, the respondents stated that vakalat on their behalf had been filed only in the proceedings for the attachment before judgment and not in the suit and that they had not been served with summons as well as the copy of the plaint and since they did not hear anything from the court, they contacted their counsel on 25th September, 1979 when they learnt that the suit had been decreed on 14th August, 1979. According to the respondents, the passing of a decree without taking the first step, namely, the service of summons, was invalid, and rendered the decree liable to be set aside. Adverting to the delay in filing the application for setting aside the ex parte decree, the respondents maintained that there was no delay at all as they became aware of the passing of the decree only on 25th September, 1979 and that the application for the condonation of the delay was filed only by way of abundant caution.

(2.) In the counter filed by the petitioner, after referring to the application for attachment before judgment and the closure of the same on 20th April, 1979, he stated that the respondents had received on 16th April, 1979 a copy of the plaint as well as the notice of the first hearing of the suit on 12th July, 1979, and since thereafter the respondents failed to observe and fulfil the provisions of Order 37, C.P.C. the suit was decreed. The petitioner also maintained that at all material times the respondents were fully aware of the suit and time was granted to the respondents even on 12th July, 1979 to give notice of appearance to the petitioner and the suit was adjourned to 14th August, 1979, for this purpose and, therefore, the respondents cannot claim that they were not aware of the proceedings. The petitioner also stated that the reasons set out for the condonation of the delay are not correct and had been given only with a view to protract the proceedings and delay the realisation of the amount due under the decree and, therefore, no ground has been made out for condoning the delay. In a supplemental counter affidavit filed by the petitioner, he brought to the notice of the court how after the suit was decreed on 14th August, 1979, proceedings in execution were taken in E.P.No.2529 of 1980 and the respondents were served with sale notice for the sale of the property on 3rd February, 1982. The petitioner also referred to a breach of the undertaking given by the respondents to court not to sell or dispose of the property bearing door No.3, Krishna Iyer St., George Town, Madras-1, by the sale thereof on 27th June, 1981 under document No.429 of 1981, and reiterated the stand taken by him earlier regarding the validity of the decree and also the delay.

(3.) The learned II Assistant Judge, City Civil Court, Madras, found that though the respondents had entered appearance through counsel and filed a vakalat on 17th April, 1979, there had been no service of summons on the respondents with a copy of the plaint and in the absence of such service of summons in Form 4 as prescribed in Appendix B, the first of a series of successive steps had not been complied with and, therefore, there was no scope for other steps following the first step being fulfilled and thus the decree in the suit had been passed without complying with the mandatory provisions of Order 37, rules 2 and 3, C.P.C. rendering the decree liable to be set aside. It was also found that when the decree is liable to be set aside, it followed automatically that the delay in, seeking to set aside the decree is also liable to be condoned. In that view, the learned II Assistant Judge, City Civil Court, Madras, allowed I.A.No.4281 of 1982 and 17646 of 1979 and set aside the decree passed on 14th August, 1979 in the suit.