JUDGMENT : DINESH MEHTA, J. The petitioner has preferred the present writ petition, calling in question, the order dated 17.5.2016 passed by the District Judge, Udaipur (hereinafter referred to as “the trial Court”) whereby petitioner's application under Order XXXVII Rule 4 of the Code of Civil Procedure, for setting the decree has been rejected. 2. Shorn of unwarranted details, the needful facts in a nut-shell are that the plaintiff-respondent instituted a suit for recovery of a sum of Rs. 2,00,000/- under Order XXXVII Rule 1 & 2 of the Code of Civil Procedure against the petitioner, inter alia, contending that the defendant having taken a cash loan of Rs. 2,00,000/- had tendered a cheque No. 964191 dated 28.2.2011 in plaintiff's favour, for a sum of Rs. 2,00,000/- against its payment. The said cheque in turn was returned unpaid by the drawee bank for insufficiency of funds, which constrained him to file the aforesaid suit. The said suit instituted on 4.3.2014, came to be decreed by the learned trial Court vide its judgment dated 21.1.2015 and a decree for a sum of Rs. 2,93,333/- of even date came to be drawn. 3. Faced with the aforesaid decree, the petitioner-defendant filed an application on 19.02.2015 under Order XXXVII Rule 4 of the Code of Civil Procedure inter alia indicating that two days prior to the date of hearing viz. 21.1.2015, the applicant caught cold and fever, which continued for a long period for which, he could not contact his counsel to apply for leave to defend. The aforesaid application dated 19.2.2015 was accompanied with an application under Section 5 of the Limitation Act, which came to be rejected by the learned trial Court, vide its order dated 17.05.2016 4. While rejecting the petitioner's application, for setting aside the decree, the learned trial Court has observed that though the notice under Order XXXVII Rule 3 of the Code of Civil Procedure i.e summons for judgment had been served upon the defendant-petitioner on 19.12.2014, yet he had not chosen to apply for leave to defend, particularly when defendant is an Advocate, who cannot be expected to be ignorant about the consequence of such lapse. It would not be out of context to reproduce the relevant part of the judgment, which include the contention of the petitioner and the adjudication thereupon:— ^^4- ekStwnk izkFkZuki= ds }kjk izkFkhZ@izfroknh ykyflag dh vksj ls izLrqr izkFkZuki= vUrZxr /kkjk 5 fe;kn vf/kfu;e dk fuLrkj.k fd;k tk jgk gSA mDr izkFkZuki= ds lEcU/k esa fo}ku vf/koDrk izkFkhZ@izfroknh }kjk rdZ fn;s x;s gS fd izkFkhZ chekj gkus ls fnukad 21-1-2015 dks mifLFkr ugh gks ldk Fkk vkSj ml fnu nkok fMØh dj fn;k x;k ftldh tkudkjh izkFkhZ dks fnuakd 2-2-15 dks gks ikbZ gS vkSj tkudkjh gksrs gh mlds }kjk udy gsrq izkFkZuki= izLrqr dj fn;k x;k Fkk] udy mldsk fnukad 13-2-15 dks izkIr gqbZ Fkh rFkk fnaukd 19-2-15 dks gaLrxr izkFkZuki= izLrqr dj fn;k x;kA izkFkhZ ds chekj gksus ls izkFkhZ vkns'k 37 fu;e 3 tkŒnhŒ ds lEeu dh tkudkjh vius vf/koDrk dks ugha ns ldk FkkA vr% izkFkZuki= izLrqr djus esa gqbZ nsjh dks ekQ djus esa gqbZ nsjh dks ekQ fd;k tkosA 7- eSus mHk;i{k ds rdksZ ij euu fd;k rFkk vkns'k 37 tkŒnhŒ dh ewy i=koyh ryc dh tkdj mldk /;kuiwoZd voyksdu fd;k x;k ftlds voyksdu ls izdV gks jgk gS fd vksn'k 37 fu;e tkŒnhŒ dk lEeu izkFkhZ ¼ewy izdj.k esa izfroknh½ ij fnukad 19-12-2014 dks rkehy gks x;k FkkA izkFkhZ dk mDr izdj.k esa is'ks ls vf/koDrk gksuk crk;k x;k gS bu gkykr esa izkFkhZ@izfroknh ls ;g vis{kk ugh dh tk ldrh gS fd og ekeys dh xaHkhjrk dks ugh le>rk gksA blds vykok vkns'k 37 fu;e 3 tkŒnhŒ ds izdj.k dh tkudkjh gksus ij bl ckcr mlds }kjk vius vf/koDrk dks tkudkjh ugha fn;s tkus dk rdZ ekus tkus ;ksX; ugha ekuk tk ldrk gSA vkns'k 37 fu;e 3 tkŒnhŒ dk lEeu fnukad 14-7-14 dks tkjh gksus dk rdZ izkFkh dh vksj ls xyr fn;k x;k gS yksd vnkyr esa nksuks i{kdkjku vuqifLFkr FksA blds vykok izkFkhZ dh vksj ls viuh chekjh ds laca/k esa izek.kLo:i dksbZ nLrkosth lk{; izLrqr ugha dh xbZ gS] ekewyh lnhZ tqdke ds dkj.k dksbZ vkneh ,d efgus rd bruk vLoLFk jgk gks fd vius vf/koDrk dks Hkh lwfpr ugha dj lds ;g rF; lkekU; Øe esa lkekU; izKk okys O;fDr ds fy;s ekuus ;ksX; ugh gSA bu gkykr esa izkFkhZ viuh chekjh ds dkj.k fnukad 21-1-15 dks U;k;ky; esa vuqifLFkr jgus ds rF; dks izekf.kr djus eas lQy ugha gks ik;k gSA^^ 5. No sooner did Mr. No sooner did Mr. Deelip Kawadia commence his arguments on the merits of the present writ petition, than Mr. Ravindra Paliwal, learned counsel appearing for the respondent raised a preliminary objection regarding maintainability of the present writ petition, by contending that the suit filed under Order XXXVII Rule 1 and 2 of the Code of Civil Procedure had been finally adjudicated and culminated in the judgment and decree dated 21.1.2015; and rejection of the application under Order XXXVII Rule 4 of the Code of Civil Procedure has merged in the said decree, against which a regular appeal under Section 96 of the Code of Civil Procedure has been provided, for which, the petitioner cannot invoke writ jurisdiction of this Court under Article 227 of the Constitution of India. 6. In support of his arguments, Mr. Paliwal cited judgment of Hon'ble Supreme Court rendered in case of Ajay Bansal v. Anup Mehta, reported in (2007) 2 SCC 275 . While reading para 13 and 18 of the aforesaid judgment, he emphasised that the writ petition at hand is not maintainable. 7. Para 13 and 18 of the judgment aforesaid are quoted here infra:— “13. Ordinarily, an application under Article 227 of the Constitution of India would not be maintainable where an appeal lies. An appeal lay from the decree under Section 96 of the Code. When an appeal could be filed, ordinarily, an application under Article 227 of the Constitution of India would not be entertained. 18. In the aforementioned situation, we are of the opinion that interest of justice would be met if we direct the writ petition to be converted into a first appeal. The respondents may file certified copy of the judgment and decree. Deficit court fee, if any, should also be paid by the respondents. Filing of such certified copy and deposit of court fee, if any, must be completed within eight weeks from date. Indisputably, it would be open to the appellant to raise the contention that it was a fit case where the learned Civil Judge could have granted leave to defend the suit. All the contentions of the parties shall, however, remain open.” 8. In response to the judgment aforesaid, Mr. Indisputably, it would be open to the appellant to raise the contention that it was a fit case where the learned Civil Judge could have granted leave to defend the suit. All the contentions of the parties shall, however, remain open.” 8. In response to the judgment aforesaid, Mr. Kawadia relied upon a judgment of Madras High Court dated 10.4.2013 rendered in case of Shivsu Canadian Clear International Ltd. v. Freight can Global Logistric Private Ltd. and submitted that the writ petition is maintainable. He urged that Madras High Court has aptly understood and explained the aforesaid judgment of Hon'ble Supreme Court rendered in Ajay Bansal's case (supra) and has carved out the principles regarding maintainability of the writ petition. Para 20 of the said judgment, referred to and relied upon by him is being reproduced hereunder:— “20. In my considered opinion, the law on the subject has been very clearly and clinchingly declared by the Hon'ble Supreme Court in the case of Wada Arun Asbestos Private Limited v. Gujarat Water Supply and Sewerage Board, reported in (2009) 2 SCC 432 . If one reads this judgment along with the judgment of the Hon'ble Supreme Court in Ajay Bansal's case (reported in (2007) 2 SCC 275 ) (cited supra), what emerge are as follows:— (i). After the dismissal of the application filed under Order 37 Rule 3(5) of C.P.C, thereby, declining to grant leave to defend the suit, what follows is a decree, which is almost automatic. (ii). The defendant in such a situation need not wait until a decree is passed. He has got every right to challenge the said order either under Article 227 of the Constitution of India or under Section 115 of C.P.C before this Court. (iii). It is also available for the defendant to wait till the decree is passed and thereafter, to challenge the decree by means of an appeal, in which case, in the appeal itself, he can also challenge the order made by the trial Court declining to grant leave to defend the suit. (iv). Simply because, a decree has been passed by the trial Court after the dismissal of the application under Order 37 Rule 3(5) of C.P.C, the right of the defendant to challenge such an order before this Court will not be taken away. (v). (iv). Simply because, a decree has been passed by the trial Court after the dismissal of the application under Order 37 Rule 3(5) of C.P.C, the right of the defendant to challenge such an order before this Court will not be taken away. (v). In the event, such an order made under Order 37, Rule 3(5) of CPC is set aside in the revision, the decree passed in the suit shall not stand automatically set aside as the theory of dependent order is not applicable and so, it is for the defendant to approach the trial court under Order 37, Rule 4 of CPC to reopen the decree.” 9. During the course of arguments, this Court pointed out that the case before Madras High Court was a case emanating from rejection of an application under sub-rule (5) of Rule 3 of Order XXXVII of the Code of Civil Procedure, rejecting leave to defend, whereas, in the present case, the decree had long been drawn on 21.1.2015 and the writ petition arises from an order rejecting the application for setting aside the decree, filed under Order XXXVII Rule 4 of the Code or Civil Procedure. 10. Mr. Kawadia arguing for maintainability of the petition, notwithstanding such distinguishing facts, claimed parity with the analogy drawn by Madras High Court and argued that even in the present case, rejection of petitioner's application, seeking setting aside of the decree by the order dated 17.5.2016, is a separate cause of action. He added that in case, his writ petition succeeds and the petitioner's application dated 19.2.2015 is allowed, the suit proceedings would be revived. 11. He submitted that even if this Court is of the view that the writ petition is not maintainable, the present writ petition be heard and the impugned order dated 17.5.2016 be examined on its own merit, as the present writ petition is pending since July, 2016 and relegating the petitioner to avail appellate remedy, at this stage would result in miscarriage of justice, as it would require payment of huge Court fees, besides an application seeking condonation of delay. 12. Heard learned counsel for the parties and considered the material available on record. 13. 12. Heard learned counsel for the parties and considered the material available on record. 13. The provisions incorporated under Order XXXVII Rule 4 of the Code of Civil Procedure empowers the Court to set aside a decree or execution and grant leave to the defendant to appear upon the summons and to defend the suit in ‘special circumstances’. In considered view of this Court, an order of rejection of an application under Order XXXVII Rule 4 of the Code of Civil Procedure does not merge in the basic judgment and decree and such order of rejection germinates a separate cause of action, independent of the judgment and decree. The defendant or judgment debtor may possess certain grounds and cause for challenging the judgment and decree, whereas he can have a separate set of grounds, for claiming or praying for setting aside the decree, as envisaged under Order XXXVII Rule 4 of the Code of Civil Procedure. An aggrieved party's essential grievance may be against the basic decree, for which he may have variety of arguments, but his concern against an order under Order XXXVII Rule 4 of the Code will be confined to the reasons for which, he had sought setting aside of the ex-parte decree. 14. In other words, rejection of an application under Order XXXVII Rule 4 of the Code of Civil Procedure procreates a separate and independent cause of action, than the judgment and decree, which had been passed against the judgment debtor/defendant under Order XXXVII Rule 3 of the Code of Civil Procedure. 15. As far as judgment of Hon'ble Supreme Court in case of Ajay Bansal (supra) is concerned, after a careful reading of para 13 of the judgment reproduced above, I am of the view that Hon'ble the Supreme Court has not completely closed the course leading to High Court via writ petition under Article 227 of the Constitution of India. My aforesaid view is based on the opening expression used by Hon'ble Supreme Court in para 13, viz. “Ordinarily”. Besides this, while trying to decipher the exposition of law made by the Supreme Court, following part of the judgment, has captured my attention:— “17. A contentious issue, viz., maintainability of writ petition without challenging the decree has been raised. My aforesaid view is based on the opening expression used by Hon'ble Supreme Court in para 13, viz. “Ordinarily”. Besides this, while trying to decipher the exposition of law made by the Supreme Court, following part of the judgment, has captured my attention:— “17. A contentious issue, viz., maintainability of writ petition without challenging the decree has been raised. We, however, in this case, do not intend to go into the said issue, inter alia, for the reason that the learned Judge has not assigned any reason in support of the impugned judgment. It merely directed the respondents to deposit a sum of rupees two lakhs. We are informed at the bar that such deposit has been made. What remains to be deposited is, therefore, a sum of Rs. 83,987/-. We are further informed that certified copy of the impugned order has been filed. The certified copy of the judgment and decree may also be filed.” 16. As such when Hon'ble Supreme Court itself has held that they are not going into the issue of maintainability of writ petition, it would not be appropriate for this Court to read and deduce what has been specifically refused. It is true that ultimately, Hon'ble Supreme Court has remanded the matter and directed the writ petition to be converted into a first appeal, but then, in that case, one important factor to be noticed at first is, that it was a case wherein the defendant's application under Order XXXVII Rule 3(5) of the Code of Civil Procedure, seeking leave to defend had been rejected. In such fact situation, the Supreme Court has deemed it expedient to convert the writ petition into a first appeal. Whereas in the present case, the order under challenge is an order passed under Order XXXVII Rule 4 of the Code. 17. It is to be noted that in essence, the purpose of the application under Order XXXVII Rule 4 of the Code of Civil Procedure is akin to an application under Order IX Rule 13 of the Code of Civil Procedure, which provision enables a person having suffered an ex-parte decree to apply to the concerned Court for setting aside the decree. It is true that the provisions of Order IX Rule 13 of the Code are not pari-materia as far as the phraseology used in these provisions is concerned, but in substance, the relief claimed and allowed is almost identical. 18. This comparison treads us to a very important aspect of the matter, namely; on rejection of an application under Order IX Rule 13 of the Code, an aggrieved party may prefer an appeal, as provided under Order XLIII Rule 1(d) of the Code, but to one's utter surprise, there is no analogous provision, providing for appeal against an order passed under Order XXXVII Rule 4 of the Code, rejecting the application for setting aside the decree. 19. In absence of any provisions for appeal against an order, refusing to set aside an ex-parte decree, an aggrieved party cannot be rendered remedy-less. 20. There may be a substantial time gap between passing of a decree and rejection of an application under Order XXXVII Rule 4 of the Code, and as both the orders confer separate and independent cause of actions and involve separate grounds altogether, the aggrieved defendant cannot be left in lurch, only to realise that even the limitation of filing a regular appeal has passed by. 21. Hence, with a view to mitigate against such contingency and to have a forum for redressal of the grievance against such rejection, an aggrieved party may approach High Court invoking its supervisory jurisdiction conferred by Article 227 of the Constitution of India. 22. In this regard, judgment of Hon'ble Supreme Court rendered in case of Vada Arun Asbestos (P) Ltd. v. Gujarat Water Supply & Sewerage Board, reported in (2009) 2 SCC 432 : AIR 2009 SC 1027 , gives a way for such litigant, particularly Para 16, 17 and 18 thereof, which may be gainfully quoted below:— “16. Yet again in Raj Duggal v. Ramesh Kumar Bansal [1991 Supp (1) SCC 191], this Court held: “3. Leave is declined where the court is of the opinion that the grant of leave would merely enable the defendant to prolong the litigation by raising untenable and frivolous defences. The test is to see whether the defence raises a real issue and not a sham one, in the sense that if the facts alleged by the defendant are established there would be a good or even a plausible defence on those facts. The test is to see whether the defence raises a real issue and not a sham one, in the sense that if the facts alleged by the defendant are established there would be a good or even a plausible defence on those facts. If the court is satisfied about that leave must be given. If there is a triable issue in the sense that there is a fair dispute to be tried as to the mining of a document on which the claim is based or uncertainty as to the amount actually due or where the alleged facts are of such a nature as to entitle the defendant to interrogate the plaintiff or to cross-examine his witnesses leave should not be denied. Where also, the defendant shows that even on a fair probability he has a bona fide defence, he ought to have leave. Summary judgments under Order 37 should not be granted where serious conflict as to matter of fact or where any difficulty on issues as to law arises. The court should not reject the defence of the defendant merely because of its inherent implausibility or its inconsistency.” 17. We fail to persuade ourselves to agree with the contention of Mr. Chitale that although a revision from an order granting conditional leave was maintainable, the same could not have been a subject matter of challenge in an appeal from a decree as envisaged under Section 105 of the Code of Civil Procedure. 18. A statutory right conferred on a litigant cannot ordinarily be taken away. A civil revision application might have been maintainable as against the order dated 27.11.2002 granting conditional leave. The said remedy was also available where leave to defend a suit is refused. Leave to defend a suit, as noticed hereinbefore, should ordinarily be granted. It was, therefore, permissible for the defendant to raise the said contention in the appeal although it had asked for time to comply with the conditions.” 23. In a case where an application for setting aside ex-parte decree filed under Order XXXVII Rule 4 of the Code is rejected, the grievance of the aggrieved party though may be twofold: (i) the rejection of the application and (ii) the decree itself; but in essence having suffered an order of rejection of his application for setting aside the decree, his main cause of concern or grievance remains against rejection of such application. The writ Court or the Court of revision in such event may limit the expanse of the adjudication, within the contours of the application and reasons, seeking setting aside of the decree. In other words, the Writ Court may examine the legality and propriety of the order, to the extent of error of facts or of law in rejecting such application. 24. In cases where the Court of supervisory jurisdiction, comes to the conclusion that the order under challenge is erroneous and the application ought to have been allowed, the Court may set aside such order of the trial Court; as a natural concomitant, the proceedings would revive and the defendant may be given an opportunity to defend the suit proceedings. 25. An order rejecting an application for setting aside the decree under the summary procedure of Order XXXVII Rule 4 of the Code, cannot be treated to be decree and, therefore, cannot be subjected to appeal. 26. This Court has held that against an order rejecting application under Order XXXVII Rule 4 of the Code, a revision petition is maintainable, in case of Mohan Lal v. Om Prakash, reported in AIR 1987 (Raj.) 132. 27. However, after the amendment in the Code and consequential insertion of the proviso to Section 115 w.e.f 1.7.2002, in opinion of this Court, revision is not maintainable, as acceptance of revision petition, if filed by an aggrieved party against an order rejecting the application, seeking setting aside of the decree would not dispose of the suit proceedings, it would rather resurrect or restore the same. As such following the view and consistent practice of this Court, and in wake of the amendment in the provisions of Section 115 of the Code, this Court is of the firm view that a writ petition under Article 227 of the Constitution of India can be filed. A gainful guidance in this regard can be had from the judgments of Hon'ble Supreme Court namely Surya Dev Rai v. Ram Chander Rai, reported in (2003) 6 SCC 675 : AIR 2003 (SC) 3044 and Shiv Shakti Cooperative Housing Society v. Swaraj Developers, reported in (2003) 6 SCC 659 : AIR 2003 (SC) 2434 . 28. A gainful guidance in this regard can be had from the judgments of Hon'ble Supreme Court namely Surya Dev Rai v. Ram Chander Rai, reported in (2003) 6 SCC 675 : AIR 2003 (SC) 3044 and Shiv Shakti Cooperative Housing Society v. Swaraj Developers, reported in (2003) 6 SCC 659 : AIR 2003 (SC) 2434 . 28. In light of the analysis above, this Court holds that against rejection of an application under Order XXXVII Rule 4 of the Code of Civil Procedure, for setting aside ex-parte decree, a writ petition under Article 227 of the Constitution of India is maintainable. However, the power in such cases needs to be exercised with greater circumspection, confining the adjudication within the contours of the application seeking setting aside of the decree. In other words, the Court would examine only the facts and circumstances, which caused, rather compelled the petitioner to remain absent or ignorant about the proceedings; as the restrictive language used in Order XXXVII Rule 4 of the Code, warrants existence of ‘special circumstances’. To put it simply, the Court would not go into the merit of the decree or the reasons ascribed in the judgment and decree or merit of the judgment, while hearing such a Writ Petition. 29. On the anvil of the above principles, critically examining the facts of the present case, within the precincts of Order XXXVII Rule 4 of the Code of Civil Procedure, this Court has strong reasons to conclude that the petition at hand has no substance. 30. Before adverting to the averments made in the application and the order impugned, it would be profitable to reproduce the provision of Order XXXVII Rule 4 of the Code of Civil Procedure, which reads as under:— “4. Power to set aside decree.- After decree the Court may, under special circumstances set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit.” 31. A bare look at the provision of Order XXXVII Rule 4 of the Code of Civil Procedure shows that the legislature has consciously used the expression ‘special circumstances’ as against ‘sufficient cause’ in Order IX Rule 13 of the Code, or other analogous provisions. A bare look at the provision of Order XXXVII Rule 4 of the Code of Civil Procedure shows that the legislature has consciously used the expression ‘special circumstances’ as against ‘sufficient cause’ in Order IX Rule 13 of the Code, or other analogous provisions. In view of the restrictive language used in Order XXXVII Rule 4 of the Code of Civil Procedure, one has to establish existence of not only, sufficient cause and reasons but, something extra ordinary. Something which was beyond the control or outside the reach and power of the defendant; circumstances which were exceptional or uncommon. Mere ignorance of the date of hearing or the unawareness of requirement of appearing within 10 days of service of the notice can not constitute ‘special circumstances’. It is very difficult, rather inappropriate at this stage to enlist such circumstances. 32. In the present case, it is not in dispute that the notices of the present petition were served upon the petitioner-defendant firstly on 26.3.2014; in pursuance whereof, the defendant had lodged his appearance on 3.4.2014 Thereafter, on furnishing of summons for judgment as contemplated under Order XXXVII Rule 3 of the Code of Civil Procedure, the summons for judgment were issued and the same were served upon the defendant on 19.12.2014 33. It is true that the next date of appearance given in the summons for judgment was 21.1.2015, but as clearly stipulated in the provisions of Order XXXVII Rule 3(5) of the Code of Civil Procedure, the defendant was required to apply for leave to defend within ten days of the service of the summons for judgment, which in the present case ought to have been done on or before 29.12.2014 34. It is an admitted case of the petitioner that he has failed to apply for leave to defend, within the prescribed period of ten days. 35. It is an admitted case of the petitioner that he has failed to apply for leave to defend, within the prescribed period of ten days. 35. Even at the cost of making the present judgment copious, this Court deems it appropriate to reproduce the averments made in the application, to discern the stance of the petitioner, which run as infra:— ^^2- ;g fd mDr ekeys esa lquokbZ gsrq fnukad 21-1-2015 fu;r Fkh rFkk izkFkhZ ds mDr is'kh ds nks fnu iwoZ ls gh LokLF; [kjkc gks x;k rFkk lnhZ tqdke gksdj izkFkhZ ds fujarj cq[kkj gksus dh otg ls LokLF; Bhd ugha Fkk rFkk izkFkhZ ds chekj gkus dh otg ls fu/kkZfjr le; ij mn;iqj ugha vk ldk vkSj vius vf/koDrk ls lEidZ ugh dj ldk vkSj is'kh ij viuh mifLFkfr ugh ns ldk vkSj viuh izfrj{kk gsrq vkosnu izLrqr ugh dj ldk ,slh fLFkfr esa eq> izkFkhZ@izfroknh ds fo:) ,d i{kh; dk;Zokgh dj ,di{kh; fu.kZ; ,oa fMØh ikfjr dh x;h gSA 3- ;g fd izkFkhZ@izfroknh ds cq[kkj Bhd gksus ij fnukad 2-2-2015 dk mn;iqj vkdj irk fd;k rks mDr izdj.k fnukad 21-01-2015 dks gh QSlyk gksuk izdV gqvk ftl ij izkFkhZ@izfroknh dks fnukad 13-02-2015 dks izfrfyih izkIr gqb] ftlls izkFkhZ@izfroknh ds fo:) mDr fu.kZ; ,d fMØh gksus dh loZizFke tkudkjh gqbZ mlds iwoZ mDr fu.kZ; ,oa fMØh dh tkudkjh ugh FkhA 4- ;g fd ekuuh; U;k;ky; }kjk ikfjr ,d i{kh; fu.kZ; ,oa fMØh fnukad 21-1-2015 dks vikLr fd;s tkdj izkFkhZ dks lquokbZ dk volj fn;k tkuk U;k;fgr esa vko';d gS vU;Fkk izkFkhZ dks viuk i{k izLrqr djus ls oafpr jg tk,xkA^^ 36. The petitioner has feebly explained the reasons for not appearing on the date fixed before the trial Court, viz. 21.1.2015, by saying that he was indisposed. A reading of para 2 reproduced above or even the entire application does not inspire confidence. The petitioner has stated that being under the weather, he was unable to come to Udaipur in time but he has not placed any documentary evidence to invoke confidence much less establish such assertion. 37. The entire gamut of his application dated 19.2.2015, filed under Order XXXVII Rule 4 of the Code of Civil Procedure, is to explain his inability to approach the Court, from 21.1.2015 to the date of filing of the application viz. 19.2.2015 38. 37. The entire gamut of his application dated 19.2.2015, filed under Order XXXVII Rule 4 of the Code of Civil Procedure, is to explain his inability to approach the Court, from 21.1.2015 to the date of filing of the application viz. 19.2.2015 38. The approach of the petitioner in the present application has been; as if he was required to explain the delay from the date of decree to the date of filing the application. There is not even a whisper about the facts, for which, he was unable to come to the Court, within ten days of the service of summons for judgment, which stood served on 19.12.2014 39. The petitioner - admittedly an Advocate by profession, cannot take the age-old, unacceptable refuge of ignorance of law, “ignorantia juris non excusat or ignorantia legis”. In the present case, the petitioner has rather tried to take advantage of his being well versed with law; for which, he seems to have intentionally not applied for leave to defend, within ten days of service of summons for judgment. Such finding of this Court is not premised on mere apprehension, but on reasons. 40. It is pertinent to note that when the first summons of petition under Order XXXVII Rule 1 and 2 was served upon the petitioner on 26.3.2014; well within ten days of the service, he had given his appearance on 3.4.2014, even though the next date of hearing before the trial Court was 9.5.2014 If at the first instance, the petitioner was conscious of putting his appearance within ten days of the service of the notice, no Court will accept the petitioner's purported ignorance of the requirement of applying for leave to defend, within ten days of the service of summons. 41. Even if petitioner's version is accepted that he fell ill on 20/21.01.2015; “why he did not approach the Court within the prescribed period of 10 days from 19.12.2014”, remains wholly unexplained. Apart from this, the contents of the application and the reasons mentioned therein, at the best explain the delay from the date of judgment and decree till the date of filing of the application Order XXXVII Rule 4 of the Code of Civil Procedure, which in the considered view of this Court, are not at all germane for deciding the application. An application seeking setting aside of the decree is required to show ‘special circumstances’, for which the applicant was unable to apply for leave to defend. The reasons narrated in the application do not constitute even sufficient reasons, justifying condonation of delay simplicitor, as envisaged under Sub-Rule (7) of Rule 3; much less evincing the ‘special circumstances’, which is a sine qua non for grant of an application under Rule 4 of Order XXXVII. The expression ‘special circumstances’ requires much more than what is expected of reasonable cause, seeking condonation of delay. In this regard, judgment of Hon'ble Supreme Court rendered in case of Rajni Kumar v. Suresh Kumar, reported in (2003) 5 SCC 315 : AIR 2003 SC 1322 becomes relevant, wherein Hon'ble Supreme Court has held thus:— “9. In considering an application to set aside ex-parte decree, it is necessary to bear in mind the distinction between suits instituted in the ordinary manner and suits filed under Order 37, C.P.C Rule 7 of Order 37 says that except as provided there under the procedure in suits under Order 37 shall be the same as the procedure in suits instituted in the ordinary manner. Rule 4 of Order 37 specifically provides for setting aside decree, therefore, provisions of Rule 13 of Order 9 will not apply to a suit filed under Order 37. In a suit filed in the ordinary manner a defendant has the right to contest the suit as a matter of course. Nonetheless, he may be declared ex parte if he does not appear in response to summons, or after entering appearance before framing issues; or during or after trial. Though addressing arguments is part of trial, one can loosely say that a defendant who remains absent at the stage of argument, is declared ex parte after the trial. In an application under Order 9, Rule 11, if a defendant is set ex-parte and that order is set aside, he would be entitled to participate in the proceedings from the stage he was set ex parte. But an application under Order 9, Rule 13 could be filed on any of the grounds mentioned there under only after a decree is passed ex parte against defendant. But an application under Order 9, Rule 13 could be filed on any of the grounds mentioned there under only after a decree is passed ex parte against defendant. If the Court is satisfied that (1) summons was not duly served, or (2) he was prevented by sufficient cause from appearing when the suit was called for hearing, it has to make an order setting aside the decree against him on such terms as to cost or payment into Court or otherwise as it thinks fit and thereafter on the day fixed for hearing by Court, the suit would proceed as if no ex parte decree had been passed. But in a suit under Order 37 the procedure for appearance of defendant is governed by provisions of Rule 3 thereof. A defendant is not entitled to defend the suit unless he enters appearance within ten days of service of summons either in person or by a pleader and files in Court an address for service of notices on him. In default of his entering an appearance, the plaintiff becomes entitled to a decree for any sum not exceeding the sum mentioned in the summons together with interest at the rate specified, if any, up to the date of decree together with costs. The plaintiff will also be entitled to judgment in terms of sub-rule (6) of Rule 3. If the defendant enters an appearance, the plaintiff is required to serve on the defendant a summons for judgment in the prescribed form. Within ten days from the service of such summons for judgment, the defendant may seek leave of the Court to defend the suit, which will be granted on disclosing such facts as may be deemed sufficient to entitle him to defend and such leave may be granted to him either unconditionally or on such terms as the Court may deem fit. Normally the Court will not refuse leave unless the Court is satisfied that facts disclosed by the defendant do not indicate substantial defence or that defence intended to be put up is frivolous or vexatious. Where as part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, no leave to defend the suit can be granted unless the admitted amount is deposited by him in Court. Where as part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, no leave to defend the suit can be granted unless the admitted amount is deposited by him in Court. Inasmuch as Order 37 does not speak of the procedure when leave to defend the suit is granted, the procedure applicable to suits instituted in the ordinary manner, will apply.” 42. A coordinate Bench of this Court, vide judgment dated 08.04.2013 in SB Civil Misc. Appeal No. 801/2009 (Dilip v. Mewar Anchalik Gramin Bank, Udaipur), in identical circumstances, has upheld the rejection of the application, seeking leave to defend, in absence of ‘special circumstances’, albeit in an Appeal. 43. As the contents of the application filed by the petitioner and the arguments advanced on his behalf, do not constitute ‘special circumstances’; they do not fulfill the requirement of Order XXXVII Rule 4 of the Code. 44. The application dated 21.1.2015 has rightly been rejected; affirming such order, present writ petition is also rejected; however with a cost of Rs. 5,000/-.