Sie sind auf Seite 1von 19

m Summary Procedure- Order XXXVII

Rule 1-7

m To Prevent unreasonable obstruction


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
÷ 
  
m 6 
    


 
 

 


    


 !"#$%$#&
%  '   ' (  $) !
* %  %
  +!",-' .    
  
 
 .
. 
  ' 

 
   


 .  .


 
  

'

  . 
 
  %  /
 
 
' %  0  
 ' 
 

 
.  .

 
.   
' .      
 
   


  '  

    

 
 
' 
 
 
 ' 

m R -  
 
 
w ww   

.    !  Ê  O

6  
Ê
  
 

 


  


m [   R 
- 
 ëw  w 
ëw ëww wwÊ     Ê  Ê Ê
Ê 
 Ê   w Ê   w
 
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.
[
  
 [   
R 

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

rudgment delivered

6$%%R R6$6[