MUKESH KUMAR Vs. BHOPAL SINGH

JUDGEMENT

(1.) HEARD the learned counsel.

(2.) THE learned counsel for the petitioner- defendant has submitted that while granting leave to defend by the impugned order dtd. 21. 8. 2007, the learned trial Court has erred in imposing condition of furnishing security for decree passed in summary trial under Order 37 C. P. C. He relied upon the judgment of this Court in the case of Har Narain vs. Nagami Lal reported in 1987 (2) RLR 202 = 1987 RLW 677 wherein relying upon the decision of Hon'ble Supreme Court in the case of M/s. Machalee Engineers and Manufacturers vs. M/s. Basic Equipment Corporation reported in AIR 1977 (SC) 577, the Court held that unless the trial Court comes to the conclusion prima facie that the defence sought to be raised by the defendant under Order 37 Rule 5 CPC is sham or moonshine, the learned trial Court cannot impose condition of furnishing solvent security while granting leave to defend.

(3.) ORDER 37 Sub-Rule (5) C. P. C. reads as under: &nbsp&nbsp&nbsp&nbsp&nbsp" The defendant may at any time, within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him uncon-ditionally or upon such terms as may appear to the Court or Judge to be just: Provided that leave to defend shall not refused 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 defendants is frivolous or vexatious; Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court. "