JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. A.R. Borooah learned counsel for the petitioner and Mr. B. Pathak, learned counsel for the sole respondent.

2. The present application is filed assailing an order dated 29.10.2021 passed by the learned Civil Judge No. 1, Kamrup (M) in Misc. (J) Case No. 453/2020 arising out of Money Execution Case No. 36/2018.

3. The background facts:

(I) The respondent as plaintiff instituted a suit being Summary Suit No. 334/17 in the court of Civil Judge, No. 1-Kamrup (M) at Guwahati for recovery of an amount of Rs. 15 lacs with interest and the cost of the suit. The present petitioner is arrayed as sole defendant in the said suit.

(II) Thereafter, the learned trial court issued summons to the petitioner and the learned trial court satisfied that summons have duly been served upon the defendant/present petitioner on 28.12.2017.

(III) As none did appear for the defendant, the learned trial court on 12.2.2018, fixed the suit for judgment on 17.3.2018. Thereafter, ex-parte judgment was delivered on 23.5.2018 and decreed the suit in favour of the plaintiff.

(IV) Subsequently, the petitioner herein filed an application under Order 37 Rule 4 of the CPC which was registered as Misc. (J) No. 453/2020 with a prayer to set aside the ex-parte judgment and decree dated 23.5.2018. As there was delay in preferring such application under Order 37 Rule 4 of the CPC, another application was filed for condonation of delay which was registered as Misc. (J) Case No. 206/2009 and the learned court below condoned such delay under its order dated 11.2.2020.

(V) The plaintiff/respondent filed an objection in the aforesaid application filed by the petitioner inter-alia contending that the applicant has failed to show and plead any substantial defence that he is likely to succeed in the petition filed under Order 37 Rule 4 of the CPC and therefore in view of absence of such pleadings the application filed by the Judgment debtor was liable to be dismissed.

(VI) In support of such contention the decree holder/respondent relied on the judgment of the Hon’ble Apex Court in the case of Rajni Kumar vs. Suresh Kumar Malhotra and Another, (2003) 5 SCC 315.

(VII) The learned court below after considering the materials dismissed the petition filed under Order 37 Rule 4 of CPC on the ground that the judgment debtor has not been able to show any substantial defence in his favour or raised any issues which may be triable issues in the petition.

(VIII) Being aggrieved the present application is filed.

4. Submission on behalf of the petitioner:

Learned counsel Mr. Borooah, appearing for the petitioner has advanced the following arguments:

(I) The ratio laid down in the case of Rajni Kumar (supra) is not applicable in the given facts of the present case inasmuch as the provision of Order 37 Rule 4 of the CPC is not couched in the mandatory form and an applicant shall have liberty to file separate application for setting aside the decree, for stay or setting aside the execution and for grant of leave to defendant to defend and therefore such applications can be determined at different stages.

(II) Relying on the judgment of Hon’ble Apex Court in the case of Mahesh Kumar Joshi vs. Madan Singh Negi, AIR 2015 SC 974, the learned counsel contends that the provision under Order 37 Rule 3 is a stringent provision and therefore Court is to balance the equities and to safeguard the interest of both the plaintiffs and the defendants, such decree can be vacated by putting certain conditions. In this regard Mr. Borooah, learned counsel submits that this court while issuing notice under its order dated 7.9.2022 stayed the execution proceeding subject to furnishing of indemnity bond by the petitioner before the executing court and same has duly been submitted before the executing court. Therefore, in that view of the matter, this matter should be remanded back to the learned trial court below for deciding the matter afresh with a liberty to the petitioner to file a