Case Note & Summary
The plaintiff filed a summary suit against the defendants for recovery of a loan. The defendants filed an affidavit in reply to an attachment before judgment motion, which also contained their defence. The plaintiff withdrew that motion and took out a summons for judgment. The summons for judgment was not served on the defendants, and the court proceeded ex-parte, granting conditional leave to defend and later passing a decree. The defendants (nos. 2,4,6,7) filed a notice of motion to set aside the order and decree. The court found that the defendants were not served with the summons for judgment, violating principles of natural justice. The court set aside the order and decree, and granted the defendants unconditional leave to defend the suit, as they had already disclosed a defence in their earlier affidavit.
Headnote
A) Civil Procedure - Summary Suit - Order 37 Rule 3(6)(b) CPC - Service of Summons for Judgment - The defendants were not served with the summons for judgment and the court proceeded ex-parte. The court held that the order granting conditional leave to defend and the decree must be set aside as the defendants were denied an opportunity to be heard. (Paras 1-3)
Issue of Consideration
Whether the order dated 10th February 2003 granting leave to defend on condition of depositing the suit amount and the consequent decree should be set aside as the defendants were not served with the summons for judgment.
Final Decision
The court allowed the notice of motion, set aside the order dated 10th February 2003 and the decree, and granted the defendants unconditional leave to defend the suit.
Law Points
- Summary suit procedure
- Order 37 CPC
- leave to defend
- service of summons for judgment
- setting aside ex-parte decree
- principles of natural justice
Case Details
Notice of Motion No. 1355 of 2003 in Summary Suit No. 6112 of 1999
Mr. D.D. Madon i/b S.K. Jain for the plaintiffs; Mr. Virendra Tulzapurkar with A.A. Joshi for the defendant nos.2,4,6 and 7
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Nature of Litigation
Summary suit for recovery of loan amount
Remedy Sought
Setting aside of order granting conditional leave to defend and consequential decree
Filing Reason
Defendants were not served with summons for judgment and decree was passed ex-parte
Previous Decisions
Order dated 10th February 2003 granting conditional leave to defend and decree passed in Summary Suit No. 6112 of 1999
Issues
Whether the order granting conditional leave to defend and the decree should be set aside due to non-service of summons for judgment.
Submissions/Arguments
Defendants argued that they were not served with the summons for judgment and were denied opportunity to be heard.
Plaintiff opposed the motion.
Ratio Decidendi
In a summary suit under Order 37 CPC, service of summons for judgment is mandatory. If the defendant is not served, any order passed ex-parte is liable to be set aside. The defendants had already disclosed a defence in their earlier affidavit, entitling them to unconditional leave to defend.
Judgment Excerpts
Heard the learned counsel for the appearing parties.
This motion is taken out by the original defendants 2, 4, 6 and 7 for setting aside the order dated 10th February 2003 passed in Summons for Judgement no.915 of 2001 and the consequential decree passed in the suit.
Procedural History
Plaintiff filed Summary Suit No. 6112 of 1999. Plaintiff took out Notice of Motion No. 3652 of 1999 for attachment before judgment, which was opposed by defendants. Plaintiff withdrew that motion. Plaintiff then took out Summons for Judgment No. 915 of 2001, which was heard ex-parte on 10th February 2003, resulting in conditional leave to defend and later a decree. Defendants filed Notice of Motion No. 1355 of 2003 to set aside the order and decree.
Acts & Sections
- Code of Civil Procedure, 1908: Order 37 Rule 3(6)(b)
