📘 CIVIL PROCEDURE CODE (CPC) – ORDER XXXVII

Preparation for RJS, DJS, PCS (J) and other Judicial Service Exams

🏛️ SUPREME COURT

• RAJNI KUMAR v. SURESH KUMAR MALHOTRA [2003 SC]

📖 CIVIL PROCEDURE CODE EXPLAINED

The Civil Procedure Code forms the bedrock of any and every Judicial Service exam in the country.
Its thorough knowledge is a must for all aspirants of RJS, DJS, PCS (J) and every other Judicial Service exam.

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⚖️ ORDER XXXVII – SUMMARY PROCEDURE

Condonation of delay on sufficient cause – Rule 3(7)

• Court may for sufficient cause shown by the defendant
• excuse delay of defendant
• in entering an appearance or
• in applying for leave to defend the suit

Power to set aside decree – Rule 4

• After decree:
• Court may under special circumstances
• set aside the decree and stay or set aside its execution and
• may give leave to defendant to appear and to defend the suit

Further Procedure to be the same as in ordinary suits – Rule 7

• Save as provided by this Order:
• Procedure in suits hereunder
• shall be the same as the procedure in suits instituted in ordinary manner

📝 Explanatory Notes by DLA on Order XXXVII

THE SCHEME OF ORDER 37

• Rule 2 of Order 37 enables the plaintiff to institute a summary suit in certain cases. On such a suit being filed, the defendant is required to be served with a copy of the plaint and summons in the prescribed form.

• Within 10 days of service the defendant has to enter an appearance. Within the prescribed time the defendant has to apply for leave to defend the suit and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just.

• If the defendant has not applied for leave to defend, or if such an application has been made and refused, the plaintiff becomes entitled to judgment forthwith.

• If the conditions on which leave was granted are not complied with by the defendant, then also the plaintiff becomes entitled to judgment forthwith.

• If the defendant does not enter his appearance as required or fails to obtain leave the allegations in the plaint are deemed to be admitted and straightaway a decree can be passed in favour of the plaintiff.

⚖️ THE LAW ON RULE 4 ORDER XXXVII

Rajni Kumar v. Suresh Kumar Malhotra [2003 SC]

• Rule 4 empowers, under special circumstances, the court which passed an ex parte decree under Order 37 to set aside the decree and grant one or both of the following reliefs, if it seems reasonable to the court so to do:
• (i) to stay or set aside execution and
• (ii) to give leave to the defendant (a) to appear to the summons and (b) to defend the suit

• The expression ‘special circumstances’ is not defined in C.P.C. In its ordinary dictionary meaning it connotes something exceptional in character, extraordinary or uncommon. It is an antonym of common, ordinary and general. Non-service of summons will undoubtedly be a special circumstance.

• In an application under Order 37, Rule 4 court has to determine the question as to whether circumstances pleaded are so unusual or extraordinary as to justify putting the clock back by setting aside the decree; to grant further relief in regard to post-decree matters, namely, staying or setting aside the execution and also in regard to pre decree matters viz. to give leave to the defendant to appear to the summons and to defend the suit.

• Rule 4 of Order 37 specifically provides for setting aside the decree; therefore, provisions of Rule 13 of Order 9 will not apply to a suit filed under Order 37.

• The power under Rule 4 of Order 37 is not confined to setting aside the ex parte decree; it extends to staying or setting aside the execution and giving leave to appear to the summons and to defend the suit.

• Where on an application, more than one among the specified reliefs may be granted by the Court all such reliefs may be claimed in one application. It is not permissible to claim such reliefs in successive petitions as it would be contrary to the letter and spirit of the provision.

• That is why where an application under Rule 4 of Order 37 is filed to set aside a decree either because the defendant did not appear in response to summons and limitation expired, or having appeared, did not apply for leave to defend the suit in the prescribed period, the court is empowered to grant leave to defendant to appear to the summons and to defend the suit in the same application.

• It is, therefore, not enough for the defendant to show special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or otherwise, facts which would entitle him leave to defend the suit. In this respect, Rule 4 of Order 37 is different from Rule 13 Order 9.

Prepared by the academic team at Delhi Law Academy, Jaipur
For Judicial Services Examination Preparation

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❓ Frequently Asked Questions (Order XXXVII CPC – Case Law)