Setting aside of decree by the Court.

This is a petition to revise the order passed in I.A. No. 1102 of 1954 in O.S. No. 603 of 1954 on the file of the City Civil Court, Madras. O.S. No. 603 of 1954 was a suit filed under the summary procedure prescribed under Order 37 of the Code of Civil Procedure on foot of a promissory note executed by the defendant in favour of the plaintiff. When the defendant was served with notice of summons in the suit he instructed an advocate to appear on his behalf in order that he might obtain leave to defend the suit. The petition for leave to defend was not immediately filed notwithstanding the adjournment of the suit twice to enable this to be done. Thereupon the suit was decreed ex parte, on 20th September, 1954.

The next proceeding in the suit was an application by the defendants I.A. No. 1100 of 1954 for setting aside the ex parte decree along with an application I.A. No. 1102 of 1954 the grant of leave to defend the suit. In the common affidavit in support of these petitions, the defendant stated that he was unable to appear in Court on 20th September, 1954 and file the application for leave to defend the suit because of his illness and an ex parte decree was passed on that date because of refusal of the Court to adjourn the suit to another date. On this ground he stated that he was prevented by unavoidable reasons from filing the petition for leave to defend the suit by 20th September, 1954. He then set out the details of his defence to the action and prayed for setting aside the ex parte decree and granting leave to defend the suit. Besides controverting the facts the legal objection raised to the grant of the prayers in I.A. No. 1102 of 1954 was that the application was barred under Article 159 of the Limitation Act. The learned City Civil Court Judge held that there was sufficient cause for the non-appearance of the defendant on 20th September, 1954 and set aside the ex parte decree by order, dated 2nd September, 1955. No revision is preferred against this order which has become final. The Court then proceeded to consider I.A. No, 1102 of 1954 and overruling the objection on the ground of limitation granted the defendant leave to defend the suit. The jurisdiction of the Court to make this order is challenged in this revision petition.

Order 37, Civil Procedure Code provides for a summary procedure in suits on negotiable instruments by reason of which when a suit is filed under this chapter the facts stated in the plaint are deemed to have been admitted and the plaintiff is entitled to a decree on his pleading unless the defendant satisfies the Court that he has a tenable defence and the Court is pleased to grant him leave to defend the suit which it might do either unconditionally or subject to such reasonable conditions as it might deem fit to impose. This is provided for by Order 37, rule 2, the material portions of which are

"2. (1) All suits upon bills of exchange, hundies or promissory notes may, in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in form prescribed; but the summons shall be in Form No. 4 in Appendix B or in such other form as may be from time to time prescribed.

(2) In any case in which the plaint and summons are in such forms respectively, the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend ; and, in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree"

and the sub-rule provides for the amount for which a decree might be passed. The procedure for leave to defend referred to in paragraph 2 of the sub-rule which I have extracted above is to be found in rule 3 which is in these terms:

"3. (1) The Court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclose such facts as would