[Cites 3, Cited by 0]
Rajasthan High Court - Jodhpur
Shyamlal Vishnoi vs Icici Home Finance ... on 15 December, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2025:RJ-JD:53839-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 3565/2025
1. Shyamlal Vishnoi S/o Shri Bhoora Ram, Aged About 48
Years, Resident of Plot No.26 Saraswati Nagar Mandor
Jodhpur
2. Nirmala Vishnoi W/o Shri Shyamlal Vishnoi, Aged About
45 Years, Resident of Plot No.26 Saraswati Nagar Mandor,
Jodhpur
----Appellants
Versus
Icici Home Finance, Rani Sagar Building, Jaljog Choraha Jodhpur
----Respondent
For Appellant(s) : Mr. Chetan Prakash Soni
For Respondent(s) :
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE SANJEET PUROHIT
Order
15/12/2025
1. The instant appeal has been preferred claiming the following
prayers:-
"It is, therefore, most respectfully prayed that the
appeal of appellants-defendants may kindly be accepted,
allowed and the impugned order dated 04-04-2025 passed
by the Commercial Court, No.1, Jodhpur Metro in Civil
Misc. "B" Case No.35/2023 (NCV No.65/2023) titled
petitioners-defendants Shyamlal Vishnoi & another V/s
Non-petitioner/plaintiff ICICI Home Finance rejecting the
application under Order 37 Rule 4 read with Sec. 151 CPC
& application for recording evidence filed by the
appellants-defendants may kindly be quashed and set
aside and the application under Order 37 Rule 4 read with
Sec. 151 CPC & application for recording evidence may
kindly be allowed and the ex-party decree dated
05.09.2023 passed by The Commercial Court No.1,
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Jodhpur Metro in Civil Original No. 167/2018 (NCV
No.56/2018) titled Plaintiff- ICICI Home Finance V/s
Defendants-Shyamlal Vishnoi & another kindly be set
aside. Any other appropriate order of relief which this
Hon'ble Court deems fit and found in favour of the
appellants-defendants may kindly be passed."
2. Learned counsel for the appellants submits that the
impugned order under challenge has been passed refusing the
indulgence of the Court under Order 37 Rule 4 read with Section
151 CPC, on the ground that there are no special circumstances,
which could permit the appellants to seek setting aside of the
decree. He submits that the suit for recovery was instituted under
the summary procedure of Order XXXVII CPC for a total amount of
₹8,20,415/-, arising out of a loan of ₹5,09,450/- along with a
linked top-up loan of ₹3,07,735/-, both carrying floating EMIs.
2.1. During the pendency of the suit before the learned Trial
Court, the appellants were duly represented by learned counsel
and had furnished their registered address in accordance with
Order XXXVII Rule 3 of the CPC. Summons of the suit were duly
served at the said registered address as provided by the
appellants. However, despite such service, the appellants failed to
enter appearance, and consequently, the suit came to be decreed
ex parte on 05.09.2023.
2.2. Learned counsel has tried to demonstrate that change of
address was the reason why notices were not actually served and
only the track report of the registered post has been used by the
learned trial Court to determine that the service was complete and
thus, the decree was passed.
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2.3. Learned counsel has referred to the judgment rendered by
Hon'ble Apex Court in Rajni Kumar Vs. Suresh Kumar
Malhotra & Anr., (2003) 5 SCC 315.
3. This Court finds that the learned Court below dismissed the
application under Order XXXVII Rule 4 CPC on the ground that
although the counsel regularly appearing for the appellants, at the
time of invoking the summary procedure, had furnished the
appellants' registered address as Plot No. 4, Dilip Nagar, Lal Sagar,
Jodhpur, no intimation regarding any subsequent change of
address was ever furnished to the learned Court below. The
summons were, therefore, dispatched by registered post in
accordance with the prescribed postal procedure, and the tracking
report reflected that the article was delivered at the said address
on 01.08.2023 at approximately 1:30 PM.
4. This Court takes note of the Order 37 Rule 4 CPC, which
reads as follows:-
"4. Power to set aside decree.--After decree the
Court may, under special circumstances set aside the
decree, and if necessary stay or set aside execution,
and may give leave to the defendant to appear to the
summons and to defend the suit, if it seems reasonable
to the Court so to do, and on such terms as the Court
thinks fit."
5. This Court is satisfied that the summary procedure
prescribed under the CPC is intended to ensure expeditious
adjudication of recovery disputes, and that any unwarranted
prolongation of proceedings would only exacerbate the hardship of
the party seeking recovery through lawful means. Further, the
Order 37 Rule 4 CPC is very categorical that the power enshrined
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therein has to be exercised only on special circumstances,
whereas no special circumstance is present in this case. The
procedure prescribed under Order 37 CPC was adhered to and it is
not disputed that appellants' lawyers had given the registered
address for sending summons on the said address, which was duly
served.
6. This Court is not convinced by the analogy sought to be
drawn by the learned counsel for the appellants for the aforesaid
reasons. Thus, no cause of interference is made out in the present
appeal, hence, the same is dismissed.
(SANJEET PUROHIT),J (DR.PUSHPENDRA SINGH BHATI),J
1-nirmala/-
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