IN THE HIGH COURT OF JUDICIATURE, ANDHRA PRADESH, AT HYDERABAD THURSDAY, THE SEVENTEENTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.6238 OF 2006 Between:- TCI Finance Limited, 1-11-252/11/2, Motilal Nagar, Secunderabad. …Petitioner A n d M/s Creamline Dairy Products Ltd., Rep. by its Director Mr.M.Gangadhar 1-11-252/11/2, Motilal Nagar, Secunderabad. …Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.6238 OF 2006 ORDER: The civil revision petition is directed against order dated 29-09-2006 in I.A.No.2002 of 2006 in O.S.No.9 of 1998, on the file of I-Additional Chief Judge, City Civil Court, Secunderabad, wherein the said application filed by the respondent herein under Order IX Rule 13 read with Section 151 CPC, was allowed, setting aside th e ex parte order dated 06-12-1999 in I.A.No.2047 of 1999 and consequently in the suit on 25-04-2000. 2. Heard the learned counsel for the petitioner-plaintiff and the learned counsel for respondent-D-3. Perused the records. 3. The petitioner herein filed the suit originally against respondent-D-3 and others for recovery of certain amounts allegedly due by invoking the provisions of Order XXXVII CPC relating to summary procedure. The respondent-defendant filed an application IASR.No.4478 of 1999 seeking leave to defend the suit. The said petition was returned and the same was re-submitted with a petition to condone the delay which was numbered as I.A.No.2047 of 1999. The said application was dismissed on 06-12-1999. Subsequently, on 25-04-2000, the suit was decreed ex parte. The dismissal of I.A.2047 of 1999 was assailed by filing a civil revision petition before this court and this Court allowed the said application subject to condition of payment of 1/4th of the suit claim. The matter was carried to Supreme Court and the Hon’ble Apex Court deleted the condition imposed in SLP(C) No.4233 of 2003 and allowed the petition filed under Section 5 of the Limitation Act for condoning the delay. 4. The respondent-D-3 filed I.A.No.2002 of 2006 under Order IX Rule 13 CPC for setting aside the ex parte decree. The trial Court, by the impugned order, allowed the said application keeping in view the fact that the Hon’ble Supreme Court allowed the said petition filed under Section 5 of the Limitation Act and also observing that unless an opportunity is given to the respondent-D-3 to contest the suit, it may lead to miscarriage of justice, having regard to the fact that the suit is filed for recovery of huge amount. Assailing the same, the plaintiff filed the present civil revision petition. 5. Learned counsel for the petitioner would contend that the petition under Order IX Rule 13 is not maintainable in respect of suits filed under Order XXXVII CPC and the special provision contained under Order XXXVII Rule 4 for setting aside ex parte decree alone is applicable. In that connection, he invited attention to a decision in RAJNI KUMAR v. SURESH KUMAR MALHOTRA AND ANOTHER[1], wherein the Apex Court while dealing with the question of setting aside the ex parte decree under Rule 4 of Order XXXVII CPC held as follows: “A careful reading of Rule 4 shows that it empowers, under special circumstances, the court which passed an ex parte decree under Order XXXVII to set aside the decree and grant one or both of the following reliefs, if it seems reasonable to the court so to do and on such terms as the court thinks fit: (i) to stay or set aside execution, and (ii) to give leave to the defendant (a) to appear to the summons, and (b) to defend the suit. The expression “special circumstances” is not defined in the Civil Procedure Code nor is it capable of any precise definition by the court because problems of human beings are so varied and complex. In its ordinary dictionary meaning it connotes something exceptional in character, extraordinary, significant, uncommon. It is an antonym of common, ordinary and general. It is neither practicable nor advisable to enumerate such circumstances. Non-service of summons will undoubtedly be a special circumstance. In an application under Order XXXVII Rule 4, the court has to determine the question, on the facts of each case, as to whether circumstances pleaded are so unusual or extraordinary as to justify putting the clock back by setting aside the decree; to grant further relief in regard to post-decree matters, namely, staying or setting aside the execution and also in regard to pre-decree matters viz. to give leave to the defendant to appear to the summons and to defend the suit. 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 XXXVII CPC. Rule 7 of Order XXXVII says that except as provided thereunder the procedure in suits under Order XXXVII shall be the same as the procedure in suits instituted in the ordinary manner. Rule 4 of Order XXXVII specifically provides for setting aside decree, therefore, provisions of Rule 13 of Order IX will not apply to a suit filed under Order XXXVII.” In the above decision, the Apex Court categorically held that Rule 4 of Order XXXVII CPC specifically provides for setting aside decree, and, therefore, provisions of Rule 13 of Order IX will not apply to a suit filed under order XXXVII CPC. It was also held as under: “It is, therefore, not enough for the defendant to show special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or otherwise, facts which would entitle him leave to defend the suit. In this respect, Rule 4 of Order XXXVII is different from Rule 13 of Order IX.” 6. In view of the principles laid down by the Apex Court in the above decision, an application filed for setting aside a n ex parte decree under Order XXXVII has to be necessarily considered in terms of Rule 4 of Order XXXVII, but not Order IX Rule 13, the parameters and contours of the two provisions being distinct and separate. In the present case, the application is filed under Order IX Rule 13 CPC and the trial Court has disposed of the same as such only without considering the factors which are required to be considered in terms of Order XXXVII Rule 4 CPC and as enunciated by the Apex Court in the above decision. In as much as the trial Court has misdirected itself while disposing of I.A.No.2002 of 2006 without any reference to the parameters contemplated under Order XXXVII Rule 4 CPC, it is considered just and necessary to remit the matter to the trial court for fresh disposal in accordance with law and on merits treating the application I.A.No.2002 of 2006 as if filed under Order XXXVII Rule 4 CPC. 7. In the circumstances, the civil revision petition is allowed and the impugned order is set aside. The matter is remitted to the trial court for fresh disposal according to law. There shall be no order as to costs. _____________________ G.V.SEETHAPATHY, J 17th February, 2011 Ksm/Lrkm [1] (2003) 5 SCC 315