1 fa1074-10 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION FIRST APPEAL NO. 1074 OF 2010 ALONGWITH CIVIL APPLICATION NO. 4706 OF 2009 Subramaniam S. Narayan Iyer .. Appellant V/s. Sudhakar Shivram Salvi .. Respondent ..... Mr. P. J. Das for the appellant. Ms. Vidya Gole for the respondent No.1. ..... CORAM : A.S.OKA, J. DATE : AUGUST 9, 2011. P.C.: Heard the learned counsel appearing for the appellant. The appellant is the original defendant in a summary suit filed by the respondent under Order XXXVII of the Code of Civil Procedure, 1908 (hereafter referred to as “the said Code”). The suit has been decreed partly. A decree has been passed in the sum of Rs.3,50,000/- without any interest. 2. The first submission of the learned counsel appearing for the appellant is that the summons for Judgment as contemplated by Sub Rule 4 of Rule 3 of Order XXXVII of the said Code was never served to the appellant. He submitted that the summons at Exhibit-14 is not in the form 4 A of Appendix B. He pointed out 2 fa1074-10 that the summons for judgment has to be in form 4 A. He submitted that on application at Exhibit 15 which was merely an application for grant of time, the trial Court directed the appellant to deposit a sum of Rs.1,00,000/-. He submitted that the order dated 15th October, 2008 recorded on Exhibit 1 (plaint) erroneously records that summons for judgment was issued and was served the appellant. He submitted that the entire procedure followed by the trial Court is illegal and, therefore, the decree is illegal. He submitted that now the entire decretal amount has been recovered and, therefore, one opportunity may be granted to the appellant to defend the suit. 3. Record and proceeding of the suit was called for. I have perused the record. Perusal of the record shows that the summons contemplated by Sub Rule 5 of Rule 2 of Order XXXVII of the said Code was issued on 18th April, 2008 which was duly served to the appellant and the appellant entered appearance. In fact, appellant applied for time to file written statement. Another summons at Exhibit 14 was issued on 04th July, 2008. It is true that the said summons is not in form 4 A and the summons is in form 4. The said summons was duly served to the appellant on 18th July, 2008. On 29th July, 2008, the appellant made an application at Exhibit 15 having the title “Application on behalf of the defendant for leave to defend”. In the body of the application 3 fa1074-10 it is stated that the appellant has appeared on the basis of a summons for judgment. Though the prayer in the application is not happily worded, in the application, in substance, the appellant has prayed for grant of leave to defend. In the affidavit in support at Exhibit 16, the appellant has specifically stated that he has received a copy of the summons for Judgment. He has also stated that he has filed an application for leave to defend. The reference in the affidavit is to the application which is at Exhibit 15. He stated in the affidavit that he has strong defence to succeed in the case. On 7th August, 2008, leave to defend was granted by the trial Court subject to deposit a sum of Rs. 1,00,000/- within a period of 20 days. An application at Exhibit 17 was made by the applicant on 7th August, 2008 praying for reducing the amount. On 29th September, 2008, an order passed on the said application by which order of grant of leave was reviewed and the amount of deposit as a condition for grant of leave to defend was reduced to 50%. It is true that the order passed below Exhibit 1 on 15th October, 2008 is not happily worded. The reason for passing the said order appears to be that an application at Exhibit 22 was made on 15th October, 2008 by the applicant seeking time of one month to deposit the sum of Rs. 50,000/-. Along with the application, an undertaking of the applicant was filed at Exhibit 23 to deposit the a sum of Rs. 4 fa1074-10 50,000/-. The application at Exhibit 22 was rejected by order dated 15th October, 2008. Notwithstanding the rejection, the trial Court passed the said order on 15th October, 2008 which had the result of extending the time to deposit an amount of Rs.50,000/- till 3rd November, 2008. The amount was admittedly not deposited within the extended time and in fact an applications were made at Exhibits 24 and 25 for grant of extension of time. By order dated 27th November, 2008, both the said applications at Exhibits 24 and 25 were dismissed and the suit was adjourned to 1st December, 2008 which has been decided on 2nd December, 2008. 4. The objection of the appellant is that the summons for judgment was not served in form 4 A which is the prescribed form of summons for judgment. The appellant understood the said summons as the summons for judgment and in fact applied for grant of leave to defend. The trial Court showed leniency to the appellant by reducing the amount of deposit from Rs.1,00,000/- to Rs.50,000/-. Notwithstanding the grant of sufficient time, the appellant did not deposited the said amount of Rs.50,000/-. In view of the said default, the respondent-plaintiff became entitled to a decree in view of clause (b) of Sub Rule 6 of Rule 3 of Order XXXVII. Even after grant of sufficiently long time, the appellant could not comply with the condition of deposit of 5 fa1074-10 Rs.50,000/-. 5. A decree has been passed by partly allowing the claim of the respondent to the extent of Rs.3,50,000/- without interest. The learned counsel appearing for the respondent on instructions of the respondent states that the respondent does not desire to challenge the said decree. 6. There is no merit in the Appeal and the same is accordingly dismissed with no order as to costs. 7. Civil Application No.4706 of 2009 does not survive and the same is disposed of. (A.S.OKA, J.)