Ms. Usha Mehra, J.

( 1 ) BY this revision, Mr. Arun Berry, revisionisthas assailed the order of Commercial Sub-Judge, Delhi, dated Jan. 6 1979,on the ground that the Court below passed the impugned order by notproperly exercising its jurisdiction vested in it under the law. The impugnedorder has been passed by exercising the jurisdiction with material irregularitywhen it held that the application of the revisionist under Order 37, R. 4 CPCwas barred by time and that no sufficient. ground has been made. Therespondent herein filed a summary suit against the revisionist and two otherson 30/07/1973. Summons were issued on 31/07/1973 for 20thseptember, 1973, under Order 37 CPC. . On 20/09/1973, in theproceeding, it is recorded that respondent not served, hence fresh summonsbe issued for 24/10/1973. Case was not taken up on 24/10/1973 because 24-10-1973 was declared a holiday; hence it was taken up on 26/10/1973, on which date it is recorded respondent not served ,fresh summons for 11-12-73. On 11/12/1973, it is recorded thatrespondent served by registered cover on 7/11/1973, and since theapplication for leave to defend by the defendants has not been filed within10 days, therefore, suit was decreed against defendants on 11-12-73 itself.

( 2 ) I The execution of the decree was taken out by the Decree holderand when the decree holder alongwith the bailiff came to the residence of theapplicant/revisionist on 6/12/1973 the acquired the knowledge ofdecree, having been passed against him. After gaining this knowledge, hegot the file inspected on 9/12/1975, and found that no service hadbeen effected on him. The Court had proceeded ex-parte against him withoutlooking into the record. After having inspected the file, he filed an application under Order 37, Rule 4 read with Order 9, Rule 13 and Section 151cpc for setting aside ex-parte decree. This application was contested bythe respondent herein. Following issues were framed on 7/05/1976.

1. Whether there are sufficient cause to set aside the decree ?2. Whether the application is within time ?3. Whether the application is maintainable ?4. Relief.

( 3 ) SHRI Arun Berry, the present revisionist, appeared his own witnessas JDW-1. He stated that he was partner in M/s. Baluja Glass Companyfrom 7/04/1972 to 31/08/1973. The said partnership stooddissolved w. e. f. 31-8-73. That after 31-8-73 he never visited the businesspremises i. e. the shop. He also testified that he did not receive summonsnor had any knowledge of the pendency of the suit. He learnt it for thefirst time on 6-12-75. On behalf of the decree holder, Shri Dharam Palsharma appeared as RW-1 and stated that the report on the summons wascorrect regarding service of the defendants and summons were duly servedon the defendants.

( 4 ) SO far issue No. 2 i. e. the question of limitation, Mr. S. K. Taneja,appearing for the respondent stated at the Bar that he is not pressing thisissue and the observation of the Trial Court on this issue may be set aside. In view of this statement coupled with the legal submission made by thecounsel for the revisionist that on the basis of facts in question it isresiduary Art. 181 of the Limitation Act which would apply and the limitfor moving the application would be three years, I hold that the applicationfiled by the Judgment Debtor was within time.

( 5 ) THE other limb of the controversy is whether revisionist couldprove special circumstances for setting aside the impugned order. Therevisionist had filed the application under Order 9. Rule 13 Civil Procedure Code and underorder 37, Rule 4 read with Section 151 CPC. The provisions of Order 9. Rule 13 and Rule 4 of Order 37 are not synonymous, because if it wasunder Order 37 Rule 4, then he had to prove special circumstances and not sufficient cause as required to be proved under Order 9, Rule 13 CPC. Under Rule 13 of Order 9, the Court has power to set aside the ex-partedecree if the defendant succeeds in satisfying the Court that he was preventedby

Click Here to Read the rest of this document