Order XXXVII of the Code of Civil Procedure (for short "the Code") -Petition to Set aisde exparte Decree in summary suit

Order XXXVII of the Code  of Civil Procedure (for short "the Code") -Petition to Set aisde exparte Decree in summary suit =
whether the courts below  are
justified in declining the prayer of the appellant to set aside the
ex-parte decree and to grant leave to appeal to defend the summary suit.=

Though the summons were duly served on the wife of the  appellant
on 19th December, 2009, the appellant failed to enter appearance within  ten
days on which the trial Court passed the ex-parte decree on  24th  February,
2010.=
Dealing with the objection of the appellant,  the  Courts  below  held
that the suit was for recovery on account of dishonour of  cheques  and  was
not in respect of the transaction of property.   Presumption  under  Section
118 of the Negotiable Instruments Act  was  available.   The  appellant  had
failed to enter appearance without any justification in  spite  of  service,
there was no ground to set aside the ex parte decree.=

setting  aside  of  ex-parte  decree
under Order XXXVII Rule 4 of the Code  cannot  be  allowed  in  routine  and
special  circumstances  are  required  to  be  established.   However,   the
expression "special circumstances" has to be construed having regard to  the
individual fact situations.  The Court  has  to  balance  the  equities  and
while safeguarding the interest of  the  plaintiff,  appropriate  conditions
can be laid down if the defendant makes  out  a  debatable  case  which  may
prime facie show injustice if the ex-parte decree was  not  set  aside.   As
already observed, in the present case,  it  will  be  in  the  interests  of
justice that the ex-parte decree is  set  aside  but  the  interest  of  the
plaintiff is safeguarded by the deposit of the amount  in  question  by  the
defendant as a condition precedent for setting aside the decree. -2015 SC msklawreports

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