RAMCHANDRA DHONDU DALVI Vs. VITHALDAS GOKULDAS

JUDGEMENT

(1.) THIS is an application in revision against an order setting aside an ex parte deciee passed in a summary suit, and the important question that arises is : whether the power of the Court to set aside a decree is limited to a case in which the defendant has failed to appear in answer to the summons for judgment or is wider?

(2.) PROVISIONS relating to summary suits are contained in Order 37. Rule 1, Clause (a) provides that the order shall apply to the High Courts at Madras and Bombay and enables the High Court to apply the same to any other Court. Rule 2 Sub-rule (1) enunciates classes of suits which can be filed as Summary Suits and prey cribes the mannec of presentation of plaints. Such suits can be filed in respect of bills of exchange, hundis or promissory notes. In this state the scops of the order is widened and is applied to ail suits in which the plain-tiff seeks to recover a debt or money payable on demand, with or without interest, arising out of a contract. It is sufficient to State that the present demand of the plaintiff falls within the category of the claims in respect of which, suits can be instituted under this rule. Sub-rule (2) of that rule disables a defendant from defending the suit unless he obtains leave from the Judge as provided in Rule 3 and it provides fuither that if he makes default in obtaining leave and does not appear and defend in pur- suance of the leave, the allegations in the plaint Shall be deemed to be admitted and the plaintiff shall be entitled to a decree as provided in clauses (a), (b) and (c) of the Sub-rule. Sub-rule (3) of the rule provides that a decree so obtained may be executed forthwith. Rule 3 (1) defines conditions under which the Court must give leave to defend to the defendant and Sub-rule (2) of the same rule provides that the leave may be given either conditionally or subject to terms that the Court may fix. Rule 4 relates to tlte power of the Court to set aside the decree, and is worded as follows :

(3.) MR. Justice Chandrachud in Mis. Ramaben Bhagu-bhai Patel v. Hindustan Electric Co. Ltd. , 64 Bam L. R. 794 : (AIR 1963 Bom 85), restricted the application of this rule to cases where defendant failed to appear in answer to the summons for judgment and then if it appear-ed to the Court that there are special circumstances by reason of which the defendant could not appear in answer to the summons. There he was dealing with a case where the defendant having obtained ieave to defend and, which was granted conditionally, failed to firlfil the condition and a decree was passed against him. The trial Court held that the section applied in the circumstances above stated only but acted under Section 151 of the Civil Procedure Code under its inherent powers and set aside the decree on a notice of motion. The learned Judge accspt-ed this construction of the rule.