The Court has the discretion to consider whether the defendants have a substantial defence to the suit when deciding whether to set aside an ex parte decree under Order 37, Rule 4 of the CPC.

( 1 ) THESE are the two revisional applications at the instance of the plaintiff/petitioners in Money Suit Nos. 20 of 1979 and 21 of 1979 and are directed against orders bearing the same date, namely, April 7, 1980, passed by the learned Subordinate Judge, 6th Court, Alipore, in the aforesaid two suits. By the orders impugned the learned Subordinate Judge had allowed the two applications filed by the defendants in the aforesaid two suits under Order 37, Rule 4 of the Code of Civil Procedure. To appreciate the point at issue it would be necessary to refer to more or less undisputed facts shortly set out as follows.

( 2 ) THE two suits were filed oh August 8. 1979. The suits coming under the purview of Order 37 of the Code, summonses in Form IV Appendix B were issued on September 18, 1979, and such summonses were served on October 2, 1979. The Court being closed for the puja holidays from September 20, 1979 to October 22. 1979, the defendants entered appearance on October 23, 1979, by filing a Vakalatnama executed in favour of a lawyer. In doing so, the defendants failed to furnish formally their address for service of notice on them though such address was set out in the Vakalatnama itself; they further failed to serve a notice of their appearance on the learned lawyer for the plaintiffs though it is claimed that such a notice was sent under Certificate of Posting to the plaintiffs themselves.

( 3 ) ON the returnable date, that is, on November 15, 1979, both the plaintiffs and the defendants filed their haziras. When the matter was called on, the defendants were, however, absent and the plaintiffs filed an application for passing an ex parte decree on the ground that the defendants have failed to discharge their mandatory obligations under Order 37 Rules 3 (1) and 3 (3) of the Code. Notice of such an application was not served upon the lawyer for the defendants and the application being heard ex parte the learned Judge allowed the same and proceeded forthwith to hear the suits ex parte. The plaintiff No. 2 was examined as P. W. 1 and the promissory notes being proved the suits were adjourned to the next day for orders.

( 4 ) ON the next day, that is, on November 16, 1979, the defendants appeared and filed an application under Section 151 of the Code for recalling the ex parte hearing. The learned Subordinate Judge dismissed the said application by observing that when he had heard the suits ex parte for reasons already given and when the defendants have their remedy under Order 37 Rule 4 of the Code, the prayer as made cannot be sustained. The application being so dismissed, the suits were decreed in favour of the plaintiffs ex parte against the defendants.

( 5 ) ON November 28, 1979, the defendants filed applications in the two suits under Order 37 Rule 4 of the Code out of which the present revisional applications arise. These applications were ultimately heard on contest and were allowed by the learned Subordinate Judge by the orders impugned in the present revisional applications. In setting aside the ex parte decrees the learned Subordinate Judge observed that such a decree having been passed without a summons being taken out for summary judgment under Order 37 Rule 3 (4) of the Code the decree as passed cannot be sustained, if not for other reasons, on that ground alone. The learned Subordinate Judge further observed that technical breach of the provisions of Order 37 Rule 3 (1) and Rule 3 (3) need not necessarily justify the imposition of the extreme penalty of passing an ex parte decree against the defendants, more so in the facts and circumstances of the cases under consideration. In that view, the applications under Order 37 Rule 4 of the Code being allowed the ex parte decrees were set aside. Feeling aggrieved, the plaintiffs have preferred the present two revisional applications.

( 6 ) MR, Mukherji appearing in support of these revisional applications has raised two points, the first of which ap