JUDGMENT 1. - At joint request of parties, matter was finally heard at admission stage. Instant revision petition has been preferred by petitioners defendants against order dated 10.2.2006 whereby Additional District Judge No. 3, Kota dismissed civil regular appeal No. 30/05 and upheld judgment and decree dated 24.5.2005 passed by Civil Judge (Jr. Dn.) Kota (South) in Civil suit No. 741/92. 2. Facts, in brief, are that plaintiffs (respondents) instituted civil suit for recovery of a sum of Rs. 11,645/- U/O 37, CPC - summons whereof were served upon petitioners on 16.12.1988 to put appearance before the Court within ten days to which defendants failed; hence application was filed under Order 37, Rule 3 (7) CPC alongwith application under section 5 of Limitation Act seeking condonation of delay in putting appearance, on which, according to the petitioners no order was passed, as such another application was filed on 16.8.1990 seeking leave to defend and as also condonation of delay under section 5 of the Limitation Act, which was rejected by the trial Court vide order dated 24.5.2005 and consequently decree was passed against the defendants (petitioners) vide judgment and decree dated 24.5.2005, against which they preferred first appeal but that too was dismissed by appellate court vide judgment dated 10.2.2006. Hence, this revision petition. 3. Counsel for petitioners contends that in absence of notice being served upon petitioners under Order 37, Rule 3 , CPC, trial Court was not justified in rejecting their application and passing the decree impugned and despite this fact being brought to its notice at the stage of appeal but without examining scope of provisions contemplated under Order 37, Rule 3 , CPC, appellate Court has also rejected it without assigning any justification; as such the appellate court committed manifest error of jurisdiction in upholding the decree impugned. 4.
4. Counsel further submits that application was filed under Order 37, Rule 3 (7) CPC on 7.2.1989, on which no order was passed by trial Court; as such 2nd application was moved on 16.8.1990, which in fact was reiteration of submission made in their earlier application dated 7.2.1989; but was misconstrued to be one seeking leave to defend and was arbitrarily rejected on 24.5.2005 by a separate order impugned and simultaneously decree was passed by trial Court against petitioners and despite this being brought to the notice, appellate court failed to examine the same; as such finding recorded under appellate judgment impugned is totally perverse being not supported by material on record, and it resulted in manifest material irregularity so as to warrant interference in revisional jurisdiction. 5. Counsel further submits that court below committed an error of law in awarding interest to be charged till its realisation, which is contrary to provisions under Code of Civil Procedure and is not legally sustainable. In support of this contention, Counsel placed reliance upon the decision of Madhya Pradesh High Court in AIR 1987 MP 164 . 6. Per contra, Counsel for respondents while supporting the findings recorded by courts below under judgment/orders impugned, contends that when petitioners failed to put appearance after summons being served upon them, trial Court committed no error in passing the decree impugned in favour of respondents in terms of provisions contained U/O 37 CPC. Counsel further submits that procedure provided under Order 37, Rule 3 , CPC would have been significant if the defendants had put appearance after service of summons and since instant petitioners failed to put appearance even after service of summons in Form IV, trial Court had no option except to invoke jurisdiction under Order 37, Rule 2 , CPC and thus committed no error in passing the decree impugned in favour of respondents. Counsel further submits that even in instant case, notices were issued to defendants under Order 37, Rule 3 CPC, on several occasions but they failed to put appearance for one or the other reasons; as such compliance of Order 37, Rule 3 CPC was also made; inasmuch as after filing application seeking leave to defend, earlier application filed on 7.2.1989, practically stands disposed of an explanation which defendants made in application dated 16.8.1990 was duly considered by trial Court as also by appellate court.
Counsel lastly submits that courts below committed no jurisdictional error, so as to warrant interference in revision jurisdiction of this Court. 7. I have considered rival contentions of Counsel for the parties and with their assistance, examined material on record and as also findings recorded by courts below under judgments/orders impugned. This fact remains undisputed that summons were duly served upon defendants (petitioners) on 16.12.1988 - in pursuance and within ten days whereof, they failed to put appearance before trial Court - in absence whereof there was no impediment before trial Court in proceeding further and passing a decree in terms of Order 37, Rule 2 , CPC and accordingly further proceedings provided under Order 37, Rule 3 , CPC were not required to be followed; but in instant case, there was application moved by petitioners under Order 37, Rule 3 (7) CPC alongwith application seeking condonation of delay and before any order could be passed by trial Court, they also moved another application on 16.8.1990 seeking leave to defend. Objection by Counsel for petitioners that in absence of notice pursuant to procedure being adopted U/0 37, R. 3 CPC, decree impugned could not have been passed, in fact is not based on factual matrix on record. Instant petitioners since failed to put appearance initially after service of summons though at later stage, summons under Order 37, Rule 3 were issued and taking note of the facts, the , appellate court recorded finding that since defendants in compliance of summons under Order 37, Rule 2 CPC indisputably put appearance on 7.2.1989 and acknowledged summons on 16.12.1988 and after application was moved by defendants seeking leave to defend on 16.8.1990, trial Court ordered to issue summons for judgment on 15.1.1991, thereby his application dated 7.2.1989 implied stood allowed. 8. Moreover, from a bare perusal of appellate order impugned, it appears that after application filed by petitioners on 16.8.1990 seeking leave to defend was not pressed, trial Court issued summons under Order 37, Rule 3 CPC vide order dated 15.1.1991 - in pursuance whereof notices were sent on several occasions and ultimately sent by registered post on 10.1.2005 on which report was endorsed that despite intimations, the addressee did not turn up to acknowledge the registered post and on next date 18.2.2005, defendants through their counsel at their own put appearance and insisted to dispose of their application moved on 16.8.1990.
In this view of factual matrix, there was complete compliance of procedure having been made by trial Court as provided under rules 2 and 3 of 0. 37, CPC and submission made by Counsel for petitioners that decree impugned could not have been passed without summons being served under rules 2 and 3 of 0. 37 CPC, is bereft of merit in the facts of instant case. If petitioners failed to put appearance after due service of summons issued U/0 37, R.2 CPC, the decree could have been passed against them but if they put appearance, procedure as provided U/0 37, R. 3 CPC has to be followed. At the cost of reiteration, I may observe that in instant case, defendants indisputably put appearance and procedure provided U/0 37, R. 3 CPC in the circumstances (supra) stood complied with, as rightly concurrently concluded by courts below. I do not find any jurisdictional error or material irregularity in the orders/judgments impugned while rejecting objections put by defendants and passing decree impugned. 9. Further objection put by Counsel for petitioners about charging of interest till realisation of amount under decree, suffice is to say that when the decree impugned has been passed after due notice as provided under R. 37, R. 3, CPC, discretion is left with the Court to pass appropriate order to charge interest in the manner which may meet ends of justice. 10. Hence, no error has been committed by trial Court in passing the decree for suit amount alongwith interest till its realization. I have also pondered over the findings recorded by appellate court for upholding the decree impugned, which is duly supported by material on record and do not smack of any manifest error of law or jurisdiction or any material irregularity which may require any interference. 11. I do not find any justification to interfere with concurrent findings of courts below. Consequently, this revision petition fails and is hereby dismissed.Revision Dismissed. *******