T. P. S. CHAWLA, J.

( 1 ) A very fundamental point regarding the procedure to be followed on the original side has been raised in this case. The plaintiff has instituted a suit under Order 37 of the Civil Procedure Code on the basis of a cheque given by the defendant. After summons had been served, and no application for leave to defend the suit was moved though the period prescribed had expired, counsel for the plaintiff prayed that a decree be passed forthwith. On the other hand, counsel for the defendant maintained that the stage for filing an application for leave to defend had not yet arrived, and time had not even begun to run because a summons for judgment: had not so far been served on the defendant.

( 2 ) TO understood the respective contentions a little background is necessary. The Civil Procedure Code was enacted in 1908. In Order 37 it provided a summary Procedure applicable to suits based on Negotiable Instruments . The defendant could not appear or defend the suit unless he obtained leave from the court. Under the Limitation Act of 1908 an application for leave had to be made within 10 days from service of summons : Article 159. The position under the Limitation Act 1963 is the same : Article 118.

( 3 ) IN 1966, this High Court was constituted by the Delhi High Court Act. Apart from other jurisdictions, the Court was vested with original jurisdiction. Section 7 of the Act, amongst other things, confers on the Court powers to make rules and orders with respect to practice and procedure for the exercise of its ordinary original civil jurisdiction . The Delhi High Court (Original Side) Rules were framed and brought into force in 1967. It is stated in the Preamble that these Rules are made In exercise of the powers conferred by sections 122 and 129 of the Code of Civil Procedure 1908 and section 7 of the Delhi High Court Act 1966 .

( 4 ) CHAPTER XV of the Original Side Rules deals with summary suits . It applies to all suits upon bills of exchange, hundis or promissory notes : Rule 1. The procedure it prescribes is substantially the same as that which was contained in Order 37 of the Civil Procedure Code. The defendant cannot appear or defend the suit unless he obtains leave from the Court : Rule 3. There are, of course, small differences. For example. Rule 2 permits the application for leave to be made within 20 days from service of summons, as against the 10 days allowed under the Code read with the Limitation Act. , Divergencies, such as this, are resolved by Rule 12 which says :

"the provisions of Order 37 of the Civil Procedure Code so far as they are not inconsistent with the provisions contained in this Chapter shall apply to suits to which this Chapter applies. thus, in the event of conflict, the Rules in Chapter XV override Order 37. But since, until 1976, the procedures in both were largely akin, there was hardly ever need to invoke Rule 12. At least, I do not know of any case in which that Rule was called in aid.

( 5 ) HOWEVER, this state of things was disturbed by the Code of Civil Procedure (Amendment) Act 1976. It made many drastic changes in the Code. The scheme of Order 37 was re-modelled. Now, all that the defendant is required to do on being served with summons is merely to enter an appearance within 10 days : Rule 2 (3) and 3 (1 ). Thereafter the plaintiff must serve a summons for judgment on the defendant, and it is only then that the defendant has to apply for leave to defend within 10 days from the service of such summons : Rules 4 and 5.

( 6 ) THERE appears to be no time fixed within which the plaintiff must take out a summons for judgment. In the present case, the plaintiff has not yet done so, because, it is maintained, that the new procedure is not applicable and the Original Side Rules continue to prevail. According to those Rules, time for making an application for leave to defend having expired, a decree must follow. The opposite view is urged on behalf of the defendant

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