1. This is a composite application under Order 37 Rule 4 and Order 20 Rule 11(2) of the CPC by the defendant judgment-debtor against whom a decree has been passed under Order 37, Rule 3 of the CPC.
2. The plaintiff instituted a suit on the basis of a hundi for the recovery of Rs. 2000/-.
3. A notice was issued to the defendant to appear and seek leave to defend the suit in terms of Order 37, Rule 2 of the CPC. As the defendant did not appear despite service so an ex parte decree was passed against him on 5th of September 1975. The present application has been made by the defendant on 17-1-1976 i.e four months and 12 days after the passing of the decree. He seeks to set aside the decree on the ground that he was undergoing training for six months Condensed Course at Police Training school Phillaur. No doubt the petitioner was served and he had to seek permission to defend the suit but he sent a telegram seeking adjournment of the case. The defendant was under the bona fide impression that he would be informed of the next date of hearing but this was not done and an ex parte decree was passed against him.
4. Learned counsel appearing for the plaintiff respondent has taken an objection that the application is barred by limitation. According to him an application for setting aside the ex parte decree passed under Order 37 of the CPC should be made within 30 days from the date of the decree under Article 164 of the Limitation Act. As the application has been made beyond the prescribed time so it is liable to be dismissed. Another objection raised is that the application being composite for setting aside the ex parte decree and also for fixation of instalments does not lie.
5. Mr. B.M Bhardawaj learned counsel for the defendant petitioner has met the preliminary objection of limitation by enunciating the view that the application is governed by Article 181 and not by 164 of the Limitation Act. According to the learned counsel it is only when a decree other than a decree passed under Order 37 is sought to be set aside that the provisions of Order 9, Rule 13 are attracted and the relevant Article in that case will be Article 164, therefore Order 9, Rule 6 and Rule 13 of the CPC will not apply to such decrees. The case will be governed by Order 37, Rule 4 and therefore the appropriate Article applicable will be Article 181 of the Limitation Act. Reliance has been placed on AIR 1958 Bom 10.
6. On a thoughtful consideration of the matter I am of the view that there is considerable force in the argument of the learned counsel for the defendant petitioner. No doubt as provided under Rule 7 of Order 37 the procedure in suits triable under this order is the same as the procedure in suits instituted in the ordinary manner, but this is subject to the rules of special procedure as provided under this order. Order 37 is otherwise a self contained order which deals not only with the right of the defendant to appear in a summary suit in which a decree has to be passed if leave to defend is not given to him, but also with the procedure to be followed if the defendant wishes to have a decree passed in a summary suit set aside, Rule 2 of Order 37 of the CPC provides that where the defendant to whom summons has been issued to appear and seek leave to defend the suit does not appear or if he appears and does not seek leave to defend the suit, the allegations in the plaint shall be deemed to have been admitted by him and the plaintiff shall be entitled to a decree. This rule does not postulate the passing an ex parte decree as is provided under Order 9, Rule 6 of the CPC. It is only when the defendant afterwards appears and establishes special circumstances that the court may set aside the decree and grant leave to him to appear and defend the suit.
7. Keeping in view the procedure as set out in Rule 4 it becomes clear that Order 9, Rule 13 can have no application to a decree passed in absentia of the defendant under Order 37 Rule 3. Therefore the time within which an application under Rule 4 can be made is three years from the date of the decree under Article 181 of the Limitation Act. In my view Article 164 will not be applicable to an application for setting aside the decree under Order 37 Rule 4. In this view of mine I am fortified by a Division Bench Judgment of Bombay High Court reported as AIR 1958 Bom 10. Chagla C.J (as he then was) delivering the judgment observed that where a defendant against whom a decree has been passed in a summary suit was precluded from appearing by reason of the fact that the leave to defend was not given, an application for setting aside such decree falls under Article 37 Rule 4 and the appropriate Article which will govern the case would be Article 181. I, therefore, overrule the objection of the plaintiff respondent that the application is beyond time.
8. 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 Circumstance” occurring in Rule 4 and “sufficient cause occurring in Rule 13 of Order 9. ‘Special Circumstance’ is not synoymous with ‘sufficient cause’. Under Rule 4 the defendant has to explain the special circumstance which prevented him from appearing in the court and seek leave to defend the suit within time. In the instant ease no special circumstance entitling the defendant to claim benefit under Order 4 has been set up. The mere fact that the defendant petitioner was busy at Phillaur and was undergoing training there would not have prevented him from engaging an attorney or a lawyer and instructing him to appear on his behalf and seek leave to defend the suit, or at any rate Phillaur being not a far off place from Jammu, he could have boarded the train during night and come over to Jammu on a holiday and after briefing his counsel should have returned to that place. The defendant wilfully remained absent and in spite of service did not either personally or through agent or through a lawyer care to make his appearance and seek leave to defend the suit.
9. For the foregoing reasons, I am, therefore, not inclined to accede to the request of the defendant that the decree be set aside against him.
10. Nor, can this application be treated as an application under Order 20, Rule 11 of the CPC for fixation of instalments. There being two joint requests in a composite application they cannot be allowed to be taken up in one and the same application. The petitioner, if at all, wants fixation of instalments may move a separate application under the relevant rule and then it can be considered.
11. Application dismissed.