MOHAN LAL Vs. OM PRAKASH

JUDGEMENT

(1.) Defendant petitioner has preferred this revision petition against the order dated 5-1-87 passed by the learned Additional Civil Judge No. 4, Jaipur City, Jaipur in Civil Suit No. 324 of 1986 whereby the application of the petitioner under O.37, R.4 for setting aside the ex parte decree passed on 05-09-1986 was rejected.

(2.) Plaintiff non-petitioner instituted a summary suit under O.37, C.P.C. for the recovery of Rs. 5,233/- on the basis of the Cheques issued by the petitioner towards the payment of the loan. Cheques were dishonoured by the Bank. The cheques issued were of the date of 13th September, l984 and 15th October, 1984. The petitioner closed his account earlier in September, 1984. Mr. Mandhana appearing on behalf of the non-petitioner submitted that the revision petition is not maintainable as the appeal lies under O.43, R.1(d). Sub-rule (d) of Rule 1, C.P.C. is reproduced as under : - "(d) an order under R.13 of O. IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte." The necessary ingredient of this clause (d) is- (i) that the application should be moved for setting aside the decree under R.13 of O.IX, (ii) second ingredient is that such an application should be of a case in which appeal lies. It is an admitted position in this case that under O.37, R.4 there is a special provision for setting aside the ex parte decree passed under O.37. It will not be out of place hereto mention that under R.13 of O.9 defendant may apply to the Court by which the decree was passed for an order to set it aside the decree and if he satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called upon for hearing, the Court shall make an order for setting aside the decree. Thus, under R.13 of O.9 the necessary ingredient is (1) summonses or summons was not duly served on the applicant (2) he was prevented by any sufficient cause from appearing when the suit was called for hearing.

(3.) Under O.37, R.4, the Court can only under special circumstances set inside the decree.