This is a composite application under Order 37 R. 4 and Order 20 R. 11 (2) of the Code of Civil Procedure by the defendant judgment debtor against whom a decree has been passed under Order 37 R. 3 C. P. C.

The plaintiff instituted a suit on the basis of a hundi for the recovery of Rs. 2000/-. A notice was issued to the defendant to appear and seek leave to defend the suit in terms of Order 37 R. 2 C. P. C. As the defendant did not appear despite service so an ex parte decree was passed against him on 5th of September, 1975. The present application has been made by the defendant on 17-1-1976 i. e. four months and 12 days after the passing of the decree. He seeks to set aside the decree on the ground that he was undergoing training for six months Condensed Course at Police Training School, Phillaur. No doubt the petitioner was served and he had to seek permission to defend the suit but he sent a telegram seeking adjournment of the case. The defendant was under the bona fide impression that he would be informed of the next date of hearing but this was not done and an ex parte decree was passed against him.

Learned counsel appearing for the plaintiff respondent has taken an objection that the application is barred by limitation. According to him an application for setting aside the ex parte decree passed under Order 37 of Code of Civil Procedure should be made within 30 days from the date of the decree under Art. 164 of the Limitation Act. As the application has been made beyond the prescribed time, so it is liable to be dismissed. Another objection raised is that the application being composite for setting aside the ex parte decree and also for fixation of installments does not lie.

Mr. B. M. Bhardwaj learned counsel for the defendant petitioner has met the preliminary objection of limitation by enunciating the view that the application is governed by Art. 181 and not by 164 of the Limitation Act. According to the learned counsel it is only when a decree other than a decree passed under Order 37 is sought to be set aside that the provisions of Order 9 R. 13 are attracted and the relevant Article in that case will be Article 164, therefore Order 9 R. 6 and R. 13 of the Code of Civil Procedure will not apply to such decrees. The case will be governed by Order 37 Rule 4 and therefore the appropriate Art. applicable will be Art. 181 of the Limitation Act. Reliance has been placed on A.I.R. 1958 Bombay 10.

On a thoughtful consideration of the matter I am of the view that there is considerable force in the argument of the learned counsel for the defendant petitioner. No doubt as provided under Rule 7 of Order 37 the procedure in suits triable under this order is the same as the procedure in suits instituted in the ordinary manner, but this is subject to the rules of special procedure as provided under this order. Order 37 is otherwise a self contained order which deals not only with the right of the defendant to appear in a summary suit in which a decree has to be passed if leave to defend is not given to him, but also with the procedure to be followed if the defendant wishes to have a decree passed in a summary suit set aside Rule 2 of Order 37 C.P.C. provides that where the defendant to whom summons has been issued to appear and seek leave to defend the suit does not appear or if he appears and does not seek leave to defend the suit, the allegations in the plaint shall be deemed to have been admitted by him and the plaintiff shall be entitled to a decree. This rule does not postulate the passing an ex parte decree as is provided under Order 9 R. 6 C.P.C. It is only when the defendant afterwards appears and establishes special circumstances that the court may set aside the decree and grant leave to him to appear and defend the suit.

Keeping in view the procedure as set out in R. 4 it becomes clear that Order 9, R. 13 can have no application to a decree passed in absentia of the defendant under Order 37 R. 3. Therefore the time within which

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