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2006 DIGILAW 2284 (RAJ)

Kamlesh v. Mahesh Kumar

2006-07-20

PRAKASH TATIA

body2006
Judgment Prakash Tatia, J.-Heard learned Counsel for the parties. 2. Brief facts of the case are that the respondent/plaintiff instituted two civil suits on 05.01.2005 and 04.03.2005 in the Court of District Judge, Bikaner on the basis of two promissory notes executed for a consideration of Rs. 3,50,000/-and Rs. 1,00,000/-under order 37 Rule 1 CPC. The suit for recovery of Rs. 3,50,000/-was transferred from the Court of District Judge, Bikaner to the Court of Additional District Judge, Bikaner and summons were issued to the appellants/defendants. 3. According to the appellants, the summons of said Suit No. 7/2005 were not properly served upon them, still they engaged Advocate and through Advocate submitted power, registered address and application for leave to defend under Order 37 Rule 3(5) CPC. According to the appellants, despite the fact that the appellants application for leave to defend was there, the learned Additional District Judge Fast Track No. 3, Bikaner, in whose Court the suit was transferred, in absence of the defendants drawn presumption of service under summons under Order 37 Rule 2(3), CPC and passed the decree in favour of the plaintiff of a sum of Rs. 3,50,000/-alongwith interest at the rate of 12% p.a. The appellants have preferred this appeal under Order 43 Rule 1A, CPC instead of regular first appeal under Section 96 CPC. 4. Learned Counsel for the respondent has raised a preliminary objection about maintainability of the appeal. 5. Learned Counsel for the appellants submitted that in fact, the decree passed is a decree based on admission and, therefore, an appeal lies under Order 43 Rule 1A CPC and not under Section 96 CPC. Learned Counsel for the appellants relied upon a Judgment delivered in the case of Ankit Udyog & Ors. vs. Laxman Prasad, reported in RLW 2001 (4) Raj. 596. 6. I have considered the submissions of learned Counsel for the parties and perused the facts of the case. 7. The contention of learned Counsel for the appellants is based on Order 43 Rule 1A(2) CPC which provides an appeal against the decree passed in a suit after recording a compromise. According to learned Counsel for the appellants, under Order 37 CPC, if leave to defend is not granted and one fails to apply for leave to defend, the Court passes decree on the basis of deemed admission and, therefore, that is a compromise decree. 8. According to learned Counsel for the appellants, under Order 37 CPC, if leave to defend is not granted and one fails to apply for leave to defend, the Court passes decree on the basis of deemed admission and, therefore, that is a compromise decree. 8. I am unable to subscribe to the view advanced by learned Counsel for the appellants. The suits under Order 37 CPC are of summary nature and decree is passed not on the basis of the compromise but is passed on the basis of deemed admission. Compromise is different thing than the admission of the party which depends upon the facts of each case. Denying permission to defend the suit and consequential passing of the decree by the civil Court under Order 37 CPC is a decree after contest and not on the basis of compromise of the parties. Not only this but under Order 43 Rule 1A(2) CPC, scope to challenge the decree is limited as evident from the said provision itself . 9. In view of the above, the appeal preferred by the appellants under Order 43 Rule 1A, CPC is not maintainable. Since, both the appeals one under Order 43 Rule 1A CPC lie to this Court, therefore, it will be appropriate to grant some time to the appellants to furnish the Court fees required for preferring regular first appeal so that this misc. appeal may be treated as regular first appeal subject to any objection which may be raised by the respondent for submitting Court fees late by the appellants. 10. In view of the above, the objection raised by the respondent is allowed. However, the appellants are permitted to furnish requisite Court fees within a period of four weeks time from today as required for preferring regular first appeal. In case, the appellants furnish the requisite Court fees as required for filing regular first appeal, the misc. appeal be treated as regular first appeal subject to objections about delay in filing the requisite Court fees. 10.11. In case, the requisite Court fees as required for filing regular first appeal is not deposited within four weeks from today, this appeal shall stand automatically dismissed without reference to the Court. 112. Learned Counsel for the respondent also pointed out that the appellants have already filed a suit for setting aside the decree. 10.11. In case, the requisite Court fees as required for filing regular first appeal is not deposited within four weeks from today, this appeal shall stand automatically dismissed without reference to the Court. 112. Learned Counsel for the respondent also pointed out that the appellants have already filed a suit for setting aside the decree. That fact is not very much relevant for maintainability of this appeal.