Rajamannar, C.J. - These revision petitions were first heard by Somasundaram, J., who directed them to be posted before a Division Bench, because of the conflict of decisions on the only question which arises in these petitions, namely, whether an application for leave to defend in a suit under Order 37, of the Code of Civil Procedure can be entertained after a period of ten days, from the date of service of the summons.

The question appears to us to admit only of one answer. Before dealing with the decisions on the question, the material statutory provisions may be first noticed. Under Order 37, rule 3 of the Code of Civil Procedure, the Court shall, upon application by the defendant, give leave to appear and defend the suit, after the defendant satisfies the Court by facts disclosed in affidavits that there is prima facie defence. Order 37, rule 2 (2) of the Code, provides that in any case in which the defendant has not obtained such leave, the allegations in the plaint shall be deemed to be admitted and that the plaintiff shall be entitled to a decree. We are not now concerned with the provision in rule 4 of Order 37 which empowers the Court in special circumstances to set aside the decree and then give leave to the defendant to appear and defend the suit. Article 159 of Schedule I to the Indian Limitation Act prescribes a period of ten days from the time when the summons is served for an application for leave to appear and defend a suit under Order 37 of the Code of Civil Procedure. So an application filed after the prescribed period of ten days would be barred by limitation and will have to be rejected under section 3 of the Limitation Act, unless the period is extended under any of the provisions contained in sections 4 to 25 of the Limitation Act. Section 5 is one such section. It runs thus:

“Any appeal or application for review of judgment for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period”.

This section has not been made applicable to an application under Order 37, rule 3, of the Code. Therefore, the Court would have no power to extend the period of ten days prescribed by Article 159. We are not aware of any other provision of law under which the period for filing an application under Order 37 can be extended, except no doubt where fraud is alleged, in which case section 18 of the Limitation Act would apply.

In the case before us, the application under Order 37, rule 3 of the Code was admittedly filed out of time. That was why the defendant filed along with it another application (I.A.No.266 of 1953) purporting to be under section 5 of the Limitation Act, to condone the delay in filing the application. This was allowed. The petitioners’ contention is that the Court had no power to condone the delay, as section 5 of the Limitation Act did not apply. It appears to us impossible to resist this objection.

So far, we have not referred to the decisions on the question. The first of these is that of Mack, J., in Murahari Rao v. Bapayya1. The learned Judge held that the Court had power to give the defendant leave to defend notwithstanding the fact that he had not made an application for such leave within ten days of the service of summons. The reasoning on which he came to this conclusion may be best set out in his own words. The learned Judge said:

“It is true that there is no specific provision in Order 37, rule 2 or in the Limitation Act empowering a Court to condone a delay in appearance beyond the ten days prescribed by the summon in Form No. 4. Technicality can be met with technicality, because the default recited in this summons for non-appearance within ten days is that the plaintiff will be entitled after the expiration of t

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