The Bombay High Court allowed an appeal filed against an order passed by the learned Judge, City Civil Court in Draft Notice of Motion in Summons in Summary Suit whereby the learned Judge granted leave to register the Notice of Motion taken out by the appellant to set aside the exparte decree dated 6th December 2018 passed by the City Civil Court in Summary Suit.
The Court observed that the Court can impose conditions including deposit of the decreetal amount or part thereof in the event the Court considers it appropriate to set aside the decree or execution and grant leave to the defendant to appear to defend the suit; however, such power to impose conditions cannot be exercised at the stage of registering the Notice of Motion.
Brief Facts:
The respondent had instituted a Summary Suit for recovery of the amount of the goods sold and delivered under various invoices. As defendant including the appellant/defendant No. 3 did not appear before the Court despite service of Writ of Summons, the learned Judge passed a decree directing the defendant Nos. 1 to 4 to jointly and severally pay a sum of Rs. 41,88,444/- along with interest @ 18% p.a. on the principal amount of Rs. 27,19,769/- from the date of institution of the suit till realization. The appellant claimed that he was unaware of the proceedings and when the execution of the said decree was laid in a Court at Ahmadabad, the appellant became aware of the exparte decree and thus sought to move a Notice of Motion to set aside the decree.
By the impugned order, the learned Judge considered it appropriate to direct the appellant to deposit 50% of the principal amount as a condition for registering the Notice of Motion.
Contentions of the Appellant:
The learned counsel for the Appellant submitted that the City Civil Court could not have put a condition for registering the Notice of Motion.
Observations of the Court:
The Court noted that after passing a decree, Rule 4 of Order XXXVII confers discretion in the Court to set aside the decree, and if necessary, stay or set aside the execution and grant leave to the defendant to appear to the summons and to defend the suit, under special circumstances and if it seems reasonable to the Court. The Court is empowered to put the defendant to such terms as the Court considers fit. The provisions contained in Order XXXVII Rule 4 of the Code are distinct from the general power to set aside ex parte decree under Order IX Rule 13.
The Court observed that the defendant is required to satisfy the Court that there are special circumstances which warrant the setting aside of the decree passed in the summary suit. The Court can impose conditions including deposit of the decreetal amount or part thereof in the event the Court considers it appropriate to set aside the decree or execution and grant leave to the defendant to appear to defend the suit. However, such power to impose conditions cannot be exercised at the stage of registering the Notice of Motion. The defendant could not have been ordered to deposit a portion of the decreetal amount as if it is a pre-condition for entertaining the Notice of Motion.
The decision of the Court:
The Bombay High Court, allowing the appeal, held that the impugned order, which was passed at the pre-admission stage of the Notice of Motion, deserves to be quashed and set aside.
Case Title: Shravan Kailashchandra Suthar vs Kokil Mohanlal Jain
Coram: Hon’ble Justice N. J. Jamadar
Case no.: APPEAL FROM ORDER NO.433 OF 2023
Advocate for the Appellant: Mr. Virendra Dubey
Advocate for the Respondent: None
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