R. K. ABICHANDANI, J.

( 1 ) THE petitioner seeks to challenge the order dated 6/10/1990 passed by the learned Joint Civil Judge (J. D.), Gandhidham in civil Suit No. 147 of 1988 below Exh. 25 granting leave to defend to the respondent. The main grievance of the petitioner is that, when the defendant had not filed application for leave to defend for a long time and the petitioner had already moved the Court by applications Exhs. 12 and 14 to pass a decree under Order XXXVII Rule 6 since no application for leave to defend was filed as required by Order XXXVII Rule 5 and the learned Civil Judge had directed that the matter be posted for pronouncement of judgment. The trial Court had, instead of pronouncing judgment, granted leave to defend on an application made by the respondent after the earlier order directing to place the matter for pronouncement of judgment was passed.

( 2 ) THE petitioner has sued the respondent for recovery of Rs. 3,685/ - with interest on the ground that the respondent failed to repay the amount of Rs. 3,000. 00 borrowed from the petitioner on 13/07/1987 under a promissory note. In the said summary suit, it appears that the summons for judgment was served on the respondent on 7/02/1989. On 1 9/01/1989, the petitioner filed an affidavit Exh. 12 praying for judgment and decree. On 18-2-1989, the petitioner filed application Exh. 14 stating that the necessary affidavit Exh. 12 was filed by the petitioner and that since the respondent had not filed any application for leave to defend within 10 days from the date of services of summons a decree be passed in his favour under Order XXXVII Rule 3 (6) (a) of the Civil Procedure Code. The learned Civil Judge (J. D.), Gandhidham heard the said application exh. 14 along with affidavit Exh. 12 and observed that since the respondent had not applied for leave to defend and that the ground put forth by the respondent in reply to the application Exh. 14 could not be accepted the matter be posted for pronouncement of judgment. Admittedly, no judgment has thereafter been pronounced. After this order was passed on 7-12-1989, the respondent filed an application for obtaining leave to defend at Exh. 25 in which he said that the original promissory note was produced only on 7-12-1989 and therefore the application for leave to defend was within the prescribed time. The learned trial Judge came to the conclusion on the basis of material on record that the respondent had a good defence and a triable issue was raised and therefore by the impugned order dated 6-10-1990 he allowed the application granting leave to defend to the respondent.

( 3 ) IT was contended on behalf of the respondent that by granting leave to defend to the respondent, the trial Court had impliedly condoned delay if any in filing of the application for leave to defend. On the other hand, it was contended by the Counsel for the petitioner that there could not be any such implied condonation and that once arguments were heard on the summons for judgment and the matter was to be posted for pronouncement of judgment as directed by the trial Court, the trial Court had not jurisdiction to grant application for leave to defend.

( 4 ) IT would be seen from the provisions of Order XXXVII Rule 3 of the Civil Procedure Code that the application required to be made by the defendant under Rule 3 (5) has to be made at any time within 10 days from the service of the summons for judgment. Therefore, the assumption by the respondent, made in his application Exh. 25 that because the original promissory note was produced on 7-12-1989 in the Court his leave to defend application which was filed on 16-12-1989 was within time, is misconceived. Admittedly, the summons for judgment was served on the respondent on 7-12-1989 and therefore an application for leave to defend filed on 6-10-1990 was not within the time stipulated under Rule 3 (5) of Order XXXVII of the Civil procedure Code. There can be no question of the trial Court having i

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