Bombay High Court
D.Shanalal
Versus
Bank of Maharashtra
Decided On:

Headnote:Sections 96 and 100 and Order 37, Rules 23-Summary suit-Exparte decree under Order 37, Rule 3-Decree and exparte decree Appeal-Decree and exparte decree-Decree appealable-Appellate cannot assail exparte decree on merits.

       When leaves is not obtained or leave is refused or where the Defendant fails to comply with a conditional order, the Defendant is precluded from further contesting the Plaintiffs claim. By reason of the wordings of Order XXXVII, Rules 2 and 3 of the Code, there is further disability upon the Defendant. The facts stated in the plaint must be considered to have been admitted by the Defendant and the plaintiff becomes entitled to judgment. Order XXXVII of the Code not only provides for abridgement of the procedure of suits covered by the said provisions but also the said provisions restrict and or curtail the rights of the Defendants in these suits to contest the plaintiffs claims. When the matter is carried in Appeal, the Defendant who did not obtain leave or bad failed to comply with the conditional order continues to suffer under the same disability. It could never be contended that by reason of presenting an Appeal from the ex-parte decree the Defendant would have any greater right to contest the plaintiffs claim. The Appeals preferred from such ex-parte decrees passed in summary suits must proceed on the basis that such Defendants had admitted the Plaintiffs case as stated in the plaint and that the Plaintiffs were entitled to judgment. There fore, although there are undoubtedly similarities between all ex-parte decree and a decree passed under Order XXXVII, Rule 3 of the Code, the analogy cannot he carried too for in view of the basic difference between the too kinds of decrees. For the same reason once an Appeal is filed against an ex-parte decree passed under Order XXXVII, Rule 3, there is no unchartered right for a Defendant who had preferred an earlier Appeal against conditional order granting leave and had been unsuccessful.

       For Citation : AIR 1989 Bom 150 at pp. 153, 154