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1977 DIGILAW 374 (MP)

Ramnath Choudhary v. Chandrawati

1977-09-26

G.P.SINGH

body1977
Short Note : 1. The plaintiffs-non-applicants in this revision filed a suit under Order 37 of the Code of Civil Procedure in the Court of the District Judge, Raipur, against the defendants-applicants. The suit was for recovery of Rs. 30,892/- on the basis of six Hundis alleged to have been executed by defendant No.2, Radhkisan. On 23rd November 1976, the District Judge transferred the suit under section 7 (2) of the Madhya Pradesh Civil Courts Act to the Court of the Second Additional District Judge, Raipur. On 14th February 1977, defendants 1 and 2 appeared in answer to the summons and made an application under rule 3 of Order 37 of the Code for leave to appear and defend the suit. By an Order passed on the same date, the Additional District Judge dismissed the application. Further, on the same date, the Additional District Judge decreed the suit under Order 37, rule 2, of the Code. The present revision has been filed by defendants 1 and 2 against the order dismissing their application under rule 3 of Order 37. No appeal has, however, been filed against the decree passed by the Additional District Judge. Held : A preliminary objection has been raised by learned counsel for the plaintiffs-non-applicants that the defendant could have filed an appeal against the decree and the present revision should not have been entertained. In support of this objection, reliance has been placed on a ruling of Malik, J. in Hem Kumar v. M/s. Prabhulal Phoolchandra Firm (Civil Revision No. 623 of 1977, decided on 18th July 1977). In my opinion, the preliminary objection must succeed. Under section 115 (2) of the Code of Civil Procedure, the High Court is enjoined not to vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto If the present revision against the order refusing leave to the defendants-applicants to appear and defend the suit under rule 3 of Order 37 is allowed, the consequence would be that be decree passed by the Additional District Judge will be set aside. The High Court in revision cannot set aside the decree in view of the bar contained in section 115 (2) of the Code. The High Court in revision cannot set aside the decree in view of the bar contained in section 115 (2) of the Code. The present revision cannot be allowed without the decree being set aside for there can be no point in granting leave to defend the suit under rule 3 of Order 37 without setting aside the decree, The revision cannot, therefore, be entertained in view of the bar under section 115 (2). 2. The learned counsel for the defendants-applicants urged before me that if the order under rule 3 of Order 37 passed by the trial Court is set aside without setting aside the decree, the defendants can use the order for maintaining an application under rule 4 of Order 37. In my opinion, there is no merit in this argument. The moment the order passed by the trial Court refusing leave to defend the suit under rule 3 is set aside, the consequential effect would necessarily be to set aside the decree passed by the trial Court. As regards rule 4 of Order 37, it is still open fur the defendants applicants to show special circumstances and to apply under that rule for setting aside the decree. C.R. 623 of 1977, decided on 18-7-1977 relied on, Revision dismissed.