1988 PLP 1780 (MLD)

This is a comtsite application under Order 37, rule 4, section 19(2) and section 151 of the Code of Civil Procedure by the defendant against whom a decree has been passed under Order 37, rule 3, C.P.C.

2. The plaintiff instituted a suit on the basis of Promissory notes for the recovery of Rs.6,00,

000. A summon was issued to the defendant to appear to seek leave to defend the suit in terms of Order 37, rule 2, C.P.C. The defendant had applied for leave to appear and defend the suit by order dated 26-1-1986 a conditional leave was granted to the defendant. The defendant was directed to furnish security within four weeks. It seems that the defendant was unable to furnish security within this period. On his application a further extension was granted to him. The defendant did not furnish security as such on 29-9-1986 the suit was decreed for Rs.6,00,000 with interest at the rate of 10% per annum from the date of the suit till recovery with cost.

3. Mr. S.A. Samad, the learned counsel for the defendant has submitted that the defendant took only Rs.2,00,000 and not Rs.6,00,

000. The counsel has submitted that the defendant has 1/96th share in Plot No. 103, sheet SB.7 and Shop No. 21 on the ground floor and not undivided 1/32 share in the property.

4. Coming to the question of special circumstances as envisaged by rule 4 it is noticed that no special circumstances can be said to be established from the averments made in the application itself. There is difference between 'special circumstances' occuring in Rule and 'sufficient cause' occurring in Order 9, rule 13. "Special circumstances" is not synonymous with sufficient cause. Under rule 4, the defendant has to explain the special circumstances which prevented him from appearing in the Court and seek leave to defend the suit within time or on non compliance with the conditional order granting leave to defend. In the instant case no special circumstances entitling the defendant to claim benefit under rule 4 has been set up. No one can deny the fact that the provisions of Order 37 are made in the general interest of the public with a desire to speedy disposal of suits. Consistent with this object, it cannot he denied that such decrees, if once made, ought not likely to be set aside. The words arc of wide application and must be given their natural meaning. It is clear that Order 37 deals only with summary procedure. If leave granted and the conditions complied with, if it is conditional leave, the defendant becomes entitled to defend the suit and then, the suit ceased to be a summary suit and must be transferred to the regular list, in which case there is no question of the application of any other rules contained in Order 37, rule 4 must apply to a suit as has resulted into a decree under the summary procedure and it enables the Court to set aside the decree' which must mean "the decrcc' made under rule

2. Rule 2 contemplates two circumstances under which it can be made, (I) where the defendant fails to obtain leave to defend, and (2) where having obtained such leave, he clods not appear and defend the suit in pursuance of the leave. On satisfaction of either of these conditions, the consequences provided by sub-rule (2) of the rule 2 must follow and result into a decree.

5. The language of rule 4 is in marked contrast with that of Order 9, rule

13. This would suggest that the Court has to be very careful in the exercise of its powers and be fully satisfied about the grounds made by the defendant for setting aside the decree. Merely because a defendant comes to the Court and makes some sort of excuse it does not give power to the Court to set aside the decree In the present case the defendant came with a care allegation that the defendant had borrowed only Rs.2,00,000 and not Rs.6,00,

000. It is significant that conditional leave was granted on furnishing security and the time was further extended to 27-5-1986. Thereafter, the case was placed on 29-9-1986 on which the decree was passed. The present application was made as late as on 18-5-1987. The grounds taken in the application were raised in the earlier application. I cannot review the earlier order. I am, therefore, not inclined to accede to the request of the defendant that the decree be set aside. The application under section 151, C.P.C. is not maintainable.

6. The submission is whether the defendant has 1/32 share in the property or 1/96 share in the property. The point cannot be considered in the present application. This point cannot be allowed to be taken up in the present application. The defendant, if at all, wants to raise this point may move a separate application in the execution application which can only be considered on its own merit. For the foregoing reasons, the application is dismissed. H.B.T./K-111/K Application dismissed.