Scope of provisions of Article 159 of Limitation Act, 1908.No right accrues to question new Rules.

This is a petition to revise the order of the Third Additional City Civil Judge, Madras, refusing leave to the petitioner to defend a suit by excusing the delay in filing the application for leave to defend.

The respondent-plaintiff filed O.S.No.332 of 1951 in the City Civil Court on a promissory note as a summary suit under Order 37, rule 1(b) of the Code of Civil Procedure for recovering a sum of Rs.2,013-14-0. The petitioners-defendants were served with the summons as provided in Form No.4 of Appendix B to the Code of Civil Procedure which was marked before the learned Judge as Exhibit A-1. In that summons in addition to the form prescribed there were the further words "hearing 22nd March, 1951, at 11a.m." added to it. The summons were served on 5th March, 1951 and therefore ordinarily under Article 159 of the Limitation Act the application for leave to defend ought to be filed within ten days of the service of summons. But being misled by the additional words "hearing on 22nd March, 1951, at 11a.m.", the petitioners thought that they had time for applying for leave to defend until 22nd March, 1951 and therefore approached their counsel only on 21st March, 1951 and instructed him to file the application for getting leave to defend. The lower Court has dismissed the petition on the ground that the period of ten days provided for under Article 159 of the Limitation Act having expired there was no jurisdiction in the Court to extend the time for granting leave to defend. Mack, J., had to consider a similar case in Sekuru Murahari Rao v. Kundula Papayya1, where the facts were practically similar. There also summons were issued under Order 37, rule 1 of the Code of Civil Procedure to the defendant requiring his appearance within ten days of service. A day after the expiry of the period fixed, the defendant appeared and moved under Order 37, rule 3, Civil Procedure Code, for leave to defend. The District Munsif granted him leave to defend unconditionally and on that order the plaintiff preferred a Civil Revision Petition. While dismissing the same Mack, J., observed as follows:

"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 summons 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 this period to obtain a decree with costs. It is common ground that no decree was passed by the Court when the defendant filed his application for leave to defend on the 11th day. Furthermore under Order 37, rule 4, even after the decree the Court may, under special circumstances, set aside and give leave to the defendant to defend the suit on terms, it thinks fit. A fortiori if the Court has passed no decree, it clearly has ample discretion to give the defendant such leave, notwithstanding the fact that he has not appeared within ten days of the service of the summons on him in Form No. 4, Appendix B."

These observations have special relevancy to the present case and have my support.

Learned counsel for the respondent relies upon certain observations contained in a decision of Rajamannar, C.J. and Panchspakesa Ayyar, J., in Kamalamma v. Venkata Sastri1, which are as follows:

"While there is no provision in Order 37 of the Code for enlargement of time over and above the ten days for applying and obtaining leave to defend, there is provision in Order 7 of the Original Side Rules for extension of time by the Registrar."

I am asked to say that in the circumstances of this case the order of the lower Court refusing leave to defend is justified. As stated by Mack, J., it is somewhat incongruous that a Court which after passing a decree on default of appearance can set aside the same, should have no power, before passing the decree to extend the time for applying for leave t