D.L. MEHTA, J,—Defendant petitioner has preferred this revision petition against the order dated 5.1.87 passed by the learned Additional Civil Judge No. 4 Jaipur City, Jaipur in Civil Suit No 324 of 1986 whereby the application of the petitioner under order 37 Rule 4 for setting aside the expert decree passed on 5.9.1986 was rejected.

2. Plaintiff non petitioner instituted a summary suit under order 37 C.P.C. for the recovery of Rs. 5,233/- on the basis of the Cheques issued by the petitioner towards the payment of the loan. Cheques were dishonoured by the Bank. The cheques issued were of the date of 13th September 1984 and 15th October 1984. The petitioner closed his account earlier in September 1984. Mr. Mandhana appearing on behalf to the non petitioner submitted that the revision petition is not maintainable as the appeal lies under order 43 rule 1 (d). Sub clause (d) of Rule 1 C.P.C. is reproduced as under:—

"(d) an order under Rule 13 of order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed expert."

The necessary ingredient of this clause (d) is (i) that the application should be moved for setting aside the decree under Rule 13 of Order IX. (ii) Second ingredient is that such an application should be in a case in which appeal lies. It is an admitted position in this case that under order 37 Rule 4 there is a special provision for setting aside the expert decree passed under order 37. It will not be out of place here to mention that under Rule 13 of Order 9 defendant may apply to the court by which the decree was passed for an order to set aside the decree and if he satisfies the court that the summons were not duly served or that he was prevented by any sufficient cause from appearing when the suit was called upon for hearing, the court shall make an order for setting aside the decree. Thus, under Rule 13 of Order 9 the necessary ingredient is (i) summonses or summons was not duly served on the applicant (2) he was prevented by any sufficient cause from appearing when the suit was called for hearing.

3. Under Order 37 Rule 4, the Court can only under special circum-stances set aside the decree.

4. There is a difference between "special circumstances" occurring in Rule 4, and "sufficient cause" occurring in Rule 13. "Special circumstance" is not synonymous with sufficient cause". Apart from that in clause (d) of Rule 1 of Order 43 only the application under Rule 13 of Order 9 has been referred. There is no provision under Order 43 for setting aside the expert decree passed under Order 37, similar to rule 13 of order 9.

5. Mr. Mandhana appearing on behalf of the non petitioner has cited before me the case of V. Thiagarajan V. Mohammad Umar Sait (1) in which it has been held as under:—

"I must confess my inability to appreciate the order under revision, which only shows that the learned, City Civil Court, had not even cared to look at the provisions of S 44 of the Evidence Act. Sec. 44 of the Evidence Act occurs under the heading Judgments of courts of justice when relevant. This provision relates to procedure. It does not confer any right on the party. Therefore, the respondent herein is not enabled to move the court under s. 44 of the Evidence Act. A mere reading of that section, will clearly show that if a judgment sought to be relied upon in a proceeding, it is well open to the party to contend that the judgment sought to be relied on, was obtained by fraud, this is far from saying that a court has jurisdiction to set aside a decree under this section at the instance of one of the parties saying that it was obtained by fraud. Though the order under revision in terms does not refer to s 44, the very application for invoking the jurisdiction of the city Civil Court under S 44 Therefore it was necessary on the part of the learned Judge to have adverted to this section before entertaining the application. He had not barred to do so. Not only that as if adding insult to injury no ref

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