laid down by the Defendant 6 6 6 ot entitled except by Defendant entitled to the leave of court. defend as of right.
Trial court may set aside Decree cannot be set
decree under special aside by the trial court circumstances. except in review 1. Order applies to - a. HC, City Civil Court & Courts of Small Causes b. Other courts HC may
the operation categories of suits or operation of order 37
2. it applies-
a. Bills of exchange, Hundies, Promissory notes, b. debt, liquidated demand with or without interest arising on ±
i. Written contract ii. Enactment, sum recovered is fixed, debt or penalty iii. Guarantee, claim against principal is debt or liquidated demand ÷
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m 6 of egotiable Instruments Act (oral agreements to pay interest excluded)
m ndertaking by Guarantor that on Failure of
loanee to pay installment on due date, summary suit is
m Plaintiff
m 6 that suit is filed under this order m claimed in plaint under this rule m of suit states o. of suit nder Order XXXVII of CPC, 1908 m 6
in Appendix B m Defendants
m Court passes a decree on the basis of allegations in the plaint as they are deemed to have been admitted.
(Vijaya Home Loans Ltd. vs. Crown Traders Ltd. AIR
1998 Del 183)
The present case dealt with a summary suit filed under
Order 37 of the Civil Procedure Code, 1908, on account of failure to obtain leave to defend - The said suit was decreed on the basis of plaint that was deemed to have been admitted. m Summons require the defendant to
÷ from service to appear and defend the suit and time to cause an appearance to be entered on his behalf. [
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m Period is ÷ from the date of summons is served.
m Defendant who has failed to obtain leave to defend
m After amendment, defendant must enter appearance and thereafter he has to
m Begins after court to
m rudgment
if-
Defendant for leave or applied but
Defendant permitted to defend but
m
m Plaintiff serves a copy of plaint with annexure m Within 10 days of such service, m Defendant enters appearance m He files address for service of notice m Deemed to be served when left at address given by him. m Entering appearance, notice from defendant to plaintiff m Enters Appearance, plaintiff serves summons for judgment in Form o. 4A in Appendix B m Returnable not less than 10 days from date of service supported by affidavit verifying Cause of Action & Amount claimed. m Leave to defend given
if prima facie case or triable issue. m Leave should be made
if court doubts the bona fides of defendant or thinks that the defence is put only in order to gain time. m Held that once it was found that exists, leave should be given.
( Santosh v. Moolsingh AIR 1958 SC 321)
Civil - Code of Civil Procedure - Order 37, Rule 2 & 3 - Leave to
defend - Test for leave to defend is to see whether the defence raises a real issue and not a sham one - Court was wrong in imposing condition for security on the ground for want of documentary evidence as a stage of poof can only arise after leave to appeal - Appeal allowed Following principles to be followed while granting leave:
Defendant satisfies the court of:
m h
m
which entitles defendant unconditional leave to defend. m deemed to be
m If defence
not entitled to leave to defend. m For leave to defend for recovery of money, defendants must have
to raise.
m Defendant would not be entitled to leave to defend on the
ground of
m For sufficient reason, defendant will be
in appearance or applying leave to defend.
m Committee does
on which leave to defend will be refused. It says it
m After decree of the court may, under special circumstances, Court stay or set aside decree or set aside or stay execution and give leave to defendant to appear on reasonable terms as court thinks fit.
! m Power to order bill etc, to be deposited with officer of court and proceedings will be stayed until plaintiff gives security.
" m Recovery of cost of noting non- acceptance of dishonoured bill or note shall have same remedies as the one whose bill of exchange or promissory note has been dishonoured.
# m Procedure in summary suits is same as in ordinary suit. Case of negotiable instruments
Plaintiff files summons for judgment
Defendant enters appearance within 10 days
Obtains leave to defend either conditionally or unconditionally
