Forvol Tours & Transport Services ... vs Sunrise Air Services
1996 Latest Caselaw 674 Del

JUDGMENT

M.K. Sharma, J.

(1) This is an application filed by the defendants under Order xxxvii Rule 4 read with Section 151 of the Code of Civil Procedure praying for setting aside the decree passed by this court on 17.5.1994 and also for allowing the defendants to defend the suit on merits.

(2) The plaintiff filed the present suit against the defendants under Order xxxvii of the Code of Civil Procedure for recovery of an amount of Rs.13,13,230.74 from the defendants. Summons having been issued in the aforesaid suit the same were served on the defendants on 17.9.1993. The defendants however, did not take any steps to cause their appearance to be entered within 10 days from the service thereof. Accordingly, by order dated 7.1.1994 it was ordered that the defendants were duly served with the summons in the suit in the prescribed form on 17.9.1993 and that they had failed to put in appearance within the statutory period as prescribed under Order xxxvii Rule 3(1) CPC.

(3) The defendants filed an application under Order xxxvd Rule 3,4 & 7 read with Section 151 Civil Procedure Code praying that the delay in filing the appearance before the court be condoned. The aforesaid application was registered as I.A.No. 844/1994. The aforesaid application was put up for necessary orders before the court on 17.5.1994. The counsel for the parties were heard at length on the said application. In the said application the defendants stated that the summon was not in the statutory form Iv of Appendix B of the Civil Procedure Code. It was further pleaded that as the date in the form Iv as prescribed under Order 37 Rule 2(2) was mentioned as 7.1.1994, the defendants approached their counsel on the morning of 7.1.1994 itself and gave instructions to appear in the court. It was also stated that since the summons were not in consonance with Form Iv of Appendix B of the Code of Civil Procedure the delay in appearance is liable to be condoned and the defendants should be allowed to defend the suit on merits. After hearing the counsel for the parties this court came to the conclusion that no case had been made out in the application for not causing the appearance within 10 days of the service of summons and accordingly, by order dated 17.5.1.994 the said application was dismissed. The court thereafter proceeded to deal with the suit and as the defendants did not put in appearance within 10 days and their application having been dismissed the suit of the plaintiff was decreed with costs and interest @ 18% per annum till realisation. Subsequent to passing of the aforesaid decree in the suit the defendants have filed the present application.

(4) I have been taken through the contents of the application filed by the defendants and I have also heard the learned counsel for the parties at length. The main contention of the learned counsel for the defendants was that the summon issued to the defendants was not in statutory form Iv of Appendix B to the Code of Civil Procedure and accordingly, the defendants were misled about the next date of hearing and they having been so misled by the use of the non-statutory form of summons could not put in their appearance within the statutory period of the receipt of the summons as laid down under Order 34 Rule 4 of the Code of Civil Procedure. Learned counsel also submitted that he has a strong prima facie arguable case as the cheques on the basis of which the decree has been passed in favour of the plaintiff are forged cheques and accordingly the aforesaid decree for an amount which is not actually recoverable from or payable by the defendants is liable to be get aside.

(5) So far as the second contention of the learned counsel for the defendant is concerned it is with regard to the merits of the case and the same could be considered only when the defendants are able to establish 'the special circumstances' for setting aside the decree. In order to maintain the present application seeking for setting aside of the decree passed by this court on 17.5.1994, the defendants are putting forward the same ground namely - service of summons on the defendants not in statutory form which was also the issue raised in the earlier application filed by the defendants under Order xxxvii Rule 3,4 & 7 Civil Procedure Code which came to be dismissed with reasons after due consideration by this court on 17.5.1994. The aforesaid order dated 17.5.1994 holding that the defendants have failed to make out any case for not causing appearance within 10 days of the service of summons was not assailed in any higher forum. Accordingly, in my opinion, the decision has attained finality and cannot be re-agitated by way of this application, raising the same issue once again for consideration.

(6) In the result, this application is found to be without merit and accordingly the same is dismissed. There will however, be no order as. to costs.