An application under Order XXXVII Rule 4 should demonstrate 'special circumstances' to grant leave to defend.

( 1 ) THE present Civil Revision Petition filed under Section 115 of the Code of civil Procedure, 1908 (hereinafter referred to as the Code, for short) is directed against the Order dated 26th July, 2005 dismissing the application of the petitioner under Order XXXVII Rule 4 read with Section 151 of the Code.

( 2 ) THE respondent herein has filed a suit for recovery of Rs. 11,10,000. 00 under the summary procedure under Order XXXVII of the Code.

( 3 ) THE petitioner was duly served and had filed his appearance on 17th March, 2004 At the time of filing his appearance, the petitioner also filed his address for service of summons for judgment.

( 4 ) THE respondent thereafter filed an application for issue of summons for judgment and on several occasions, notices were issued to the petitioner at the address given by him, namely, B-4/3, Vasant Vihar, New Delhi. It is clear from the order passed by the learned Trial Court that notices were issued for service of summons of judgment for dates fixed on 25th April, 2004, 8th July, 2004, 11th august, 2004 and 14th September, 2004 On these four occasions, summons for judgment were received back unserved with the report that the petitioner was out of India as was stated by one or the other family member of the petitioner. The summons for judgment sent by registered posts were also received back as unclaimed.

( 5 ) IN these circumstances, the learned Trial Court vide order dated 27th september, 2004 directed that the summons for judgment should be served by affixation for the next date of hearing, i. e. 12th October, 2004 The summons for judgment in terms of the said order was served by affixation at the address given by the petitioner. On the next date of hearing, i. e. 12th October, 2004 appearance was put in on behalf of the petitioner and it was stated that the petitioner was out of India and in these circumstances leave to defend application could not be filed. Learned Trial Court after considering the submissions made, vide Order dated 12th October, 2004 decreed the suit for rs. 11,10,000. 00 with interest @ 6% per annum from the date of filing of the suit till decree.

( 6 ) THEREAFTER, the petitioner filed an application under Order XXXVII Rule 4 read with Section 151 of the Code for setting aside of the decree dated 12th october, 2004 This application was filed on or about 9th November, 2004 The application was considered and dismissed by the learned Trial Court by a detailed speaking impugned order dated 26th July, 2005.

( 7 ) I have heard learned counsel for the petitioner.

( 8 ) THE respondent herein had filed a suit for recovery of Rs. 11,10,000. 00 under the summary procedure on 23rd November, 2001. It appears that after considerable difficulty, the petitioner was served and he filed his appearance on 17th March, 2004 Thereafter, four attempts were made to serve summons for judgment at the address given by the petitioner himself for service of the said summons but he could not be served. Notices sent by registered post were also received back unclaimed. Ultimately by Order dated 14th September, 2004, the petitioner was directed to be served by affixation. A bailiff in terms of the order passed by the Trial Court affixed the summons for judgment on 27th september, 2004 The petitioner was aware of affixation and therefore entered appearance through his counsel on the next date of hearing i. e. 12th October, 2004 but no application for leave to defend was filed. In these circumstances, learned Trial Court decreed the suit on 12th October, 2004 Thereafter, an application under Order XXXVII Rule 4 of the Code was filed for setting aside of the ex-parte decree.

( 9 ) THE Suit under Order XXXVII was based upon a promissory-note. The promissory note records that the respondent had advanced and given loan of rs. 7,50,000. 00 to the petitioner. The petitioner had also executed a receipt duly acknowledging the said loan. This promissory note/receipt is dated 24th november