United Western Bank Ltd. vs Manoj Hosiery

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : R.M. Deshpandey.
For the Respondent: Mandhanya.

Headnote:(1) Civil Procedure Code, 1908 – O.37 R. 3 (4) and 4 – provision under R. 3 (4) – is mandatory – no notice in accordance therewith served – setting aside decree under R. 4 is lawful.
       (2) Civil Procedure Code, 1908 – O. 37 R. 4 and 7 – decree set aside under – Court may direct appearance of defendant to contest the suit as regular civil suit.
        Short Note
       1. This order shall dispose of both the revisions above as they arise out of the same matter.
       2. The United Western Bank Ltd. (for short the plaintiff bank) filed a suit for recovery of Rs. 77,990.00 against M/s. Manoj Hosiery and Bhagchand under the provisions of Order 37 the Code of Civil Procedure. After the defendants entered appearance, summons for judgment under Rule 3 (4) of Order 37 were served on them. However, leave to defend was refused to them as the application for the same was not made within the prescribed time. A judgment and decree were accordingly passed against the defendants. The defendant Bhagchand later on made an application under Order 37 Rule 4 CPC for having the said decree set aside on the ground that no valid summons for judgment in form No: 4 (A) in appendix – B was served on him. The Court below after hearing the parties, by its order dated 7.2.95 passed in MJC No. 56/93, allowed the application and set aside the decree. By subsequent order dated 12.10.95 passed in the original suit No. 27 B 91, the Court has further directed that the suit against the defendants be proceeded in accordance with the procedure in suits instituted in the original manner.
       3. Feeling aggrieved by the aforesaid two orders, both the plaintiff and defendant have come up in revision before this Court. Plaintiff banks revision is directed against the order dated 7.2.95 while the defendant Bhagchand has sought to impugn the order dated 12.10.95 passed in the suit.
       4. I have heard Shri R.M. Deshpandey, learned counsel for the plaintiff and Shri Mandhanya, learned counsel for the defendant, Bhagchand.
       5. Both these revisions must fail. It is not disputed that the summons for judgment served on the defendants under Rule 3 (4) of Order 37 CPC did not contain the amount claimed by the plaintiff. The summons were, therefore, not in terms of Rule 3 (4). This Court in the case of Rameshchandra v. Central Bank of India and another (1992 JLJ 434) has held:
       "From a perusal of sub – rule 4, 5 and 6 of Rule 3 of Order 37 it is clear that the entire action is based on summons for judgment. If summons for judgment is not issued as required by sub – rule 4, there is nothing on the basis of which the defendant could ask for leave to defend and there is nothing on the basis of which the Court could grant judgment. The provisions are, therefore, clearly mandatory and in fact the summons for judgment is a basis to any judgment which may be pronounced under Order 37 CPC. If there is no affidavit verifying the cause of action and the amount claimed and stating that in plaintiff's belief there is no defence to the suit, there is nothing for the defendant to defend against and there is nothing against which leave to defend could be asked for".
       6. The Court below was therefore right in holding that sub – rule (4) of Rule 3 is mandatory and non – compliance thereof has violated by the judgment and decree passed in the case. Rule 4 of Order 37 authorises the Court, under special circumstances, to set aside the decree and grant leave to the defendants to appear to the summons and defend the suit. The Court below having done so in the circumstances already stated herein before, cannot be said to have acted without jurisdiction or with any illegality or material irregularity. No interference is therefore, could for in revision by this Court.
       7. As regards defendants revision (No. 159/96), Rule 4 itself provides that after setting aside decree, the Court may give leave to the defendant to appear to the summons and to defend the suit. Rule 7 further provides that the procedure in suits under the Order 37 shall be the same as the procedure in suits instituted in the ordinary manner. Court below was, therefore, right in directing that the defendants may now defend the suit and the suit shall proceed in the ordinary manner. This revision should also, therefore, fail.
       Accordingly I dismiss both the revisions but without any order as to costs.
       This order be retained in Civil Revision No. 207/95 and a copy be placed in Civil Revision No. 159/96.

United Western Bank Ltd. vs Manoj Hosiery - 1996 Supreme(MP) 1113