The main legal point established in the judgment is that the court may set aside an ex parte decree if the defendant was misled into not filing an application for leave to defend due to irregularities in the summons served.

JAYANT NATH, J.

1. By the present petition, the petitioner seeks to impugn the order dated 04.08.2015 passed by the learned Additional District Judge-2, North, Rohini Courts, Delhi filed under Order 37 Rule 4 CPC for setting aside ex parte decree.

2. The respondent had filed a suit for recovery of Rs.6,30,000/-on the basis of promissory note cum receipt dated 04.04.2013 under Order XXXVII of CPC. The plaint points out that the amount of Rs.5,00,000/-was taken as loan by the petitioner which was credited to the account of the petitioner by the respondent by RTGS No.167952708 dated 04.04.2013. The court issued summons. The petitioner received summons in the suit on 20.10.2014 and filed his appearance on 28.10.2014. It is the contention of the petitioner that thereafter a second summon for entering appearance was served on the applicant/petitioner on 09.01.2015. As the petitioner had already entered appearance pursuant to the first summon, no further steps was required to be taken by the petitioner. He was also allegedly advised by his counsel that nothing further needs to be done at this stage by the petitioner and that further steps will have to take only after receiving summons for judgment. As the petitioner took no further steps, the court had passed an ex parte decree on 05.02.2015.

3. Thereafter, the petitioner has filed the present application under Order XXXVII Rule 4 CPC for setting aside the ex-parte decree stating that the petitioner got knowledge of the decree only on 15.04.2015 when the bailiff came to the house of the petitioner to execute the decree and the petitioner handed over a cheque of the decretal amount in favour of the court. It is at that stage it is urged that the petitioner learnt about the ex-parte decree.

4. By the impugned order, the learned trial court dismissed the application of the petitioner under Order XXXVII Rule 4 CPC holding that neither any ground nor any sufficient cause has been disclosed in the application for setting aside the decree. The court held that the summons for judgment had been duly served on the petitioner on 03.02.2015 and the same had been served on the petitioner as per report dated 09.01.2015 of the process server. Accordingly, as the petitioner failed to file his application for leave to defend, the court dismissed his application.

5. The learned counsel for the petitioner strenuously submitted that what was served on the petitioner was not a summon for judgment but only a summon to enter appearance in court. Hence, he submits that the petitioner was misled and cannot be penalised with an ex parte decree.

6. The original summons received the second time by the petitioner reads as follows:

“Whereas the plaintiff has instituted a suit against you for under order XXXVII of the Code of Civil Procedure 1908 for Rs.6,30,000/- and interest you are hereby summoned to cause an appearance to be entered for you, with in ten days from the service hereof in default where of the plaintiff will be entitled, after the expiration of the said period of ten days to obtain a decree for any sum not exceeding the sum of Rs.6,30,000.00 and the sum of Rs. for cost together with such interest, if any as the court may order.

If you cause an appearance to be entered for you the plaintiff will thereafter serve upon you a summons for judgment at the hearing of which you will be entitled to move the court for leave to defend the suit.

Leave to defend may be obtained if you satisfy the court by an affidavit or otherwise that there is a defense to the suit on the merits or that it is reasonable that you should be allowed to defend.

Given under my hand and the seal of the court this 30.12.2014.”

In my opinion, the perusal of the summons shows that it is not summon for judgment but summon for entering appearance having been served under Order XXXVII Rule 3 CPC.

7. The procedure to be followed by a court as stipulated under Order XXXVII Rule 2(2) reads as follows:

2. Institution of summary Suits.-(1) A suit