Case Note & Summary
The petitioners, Kishor Raghunath Pande and Vijaya Raghunath Pande, filed a writ petition under Article 227 of the Constitution of India challenging an order dated 15-02-2011 passed by the 2nd Joint Civil Judge, Senior Division, Jalgaon, rejecting their application below Exh.1 in Summary Suit No. 7 of 2009. The respondent, Narendra Durlabhji Shah, had filed the summary suit against the petitioners for recovery of an amount. The petitioners contended that they were not served with the summons in the suit and that the ex-parte decree was passed without giving them an opportunity to defend. They filed an application under Order 37 Rule 4 read with Order 9 Rule 13 and Section 151 CPC for setting aside the ex-parte decree and for leave to defend. The trial court rejected the application, holding that the petitioners had not shown sufficient cause for setting aside the decree. The High Court, after hearing both sides, observed that the trial court had not properly considered the application. The court noted that the petitioners had a valid defence and that the summons were not served in accordance with law. The High Court set aside the impugned order and allowed the application, setting aside the ex-parte decree and granting leave to the petitioners to defend the suit, subject to the condition that they deposit a certain amount or furnish security within a specified period. The writ petition was allowed with no order as to costs.
Headnote
A) Civil Procedure - Summary Suit - Order 37 CPC - Setting Aside Ex-Parte Decree - The trial court rejected the application for setting aside ex-parte decree and for leave to defend without considering that the defendant had a valid defence and that the summons were not properly served. The High Court held that the trial court ought to have considered the application on merits and set aside the ex-parte decree, granting leave to defend subject to conditions. (Paras 1-5) B) Civil Procedure - Service of Summons - Order 37 CPC - The court noted that the defendant had not been served with the summons in the manner prescribed under Order 37, and the trial court failed to record satisfaction regarding service. The High Court held that the ex-parte decree was liable to be set aside as the defendant was not given an opportunity to defend. (Paras 3-5)
Issue of Consideration
Whether the trial court was justified in rejecting the application to set aside the ex-parte decree and for leave to defend in a summary suit under Order 37 of the Code of Civil Procedure, 1908.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 15-02-2011, and allowed the application below Exh.1, thereby setting aside the ex-parte decree and granting leave to the petitioners to defend the suit, subject to the condition that they deposit a certain amount or furnish security within a specified period. No order as to costs.
Law Points
- Order 37 CPC
- Order 9 Rule 13 CPC
- Section 151 CPC
- Service of summons
- Sufficient cause for setting aside ex-parte decree
- Leave to defend
