9911796707
TMI Blog2003 (5) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... Since the application has been filed beyond the prescribed period of limitation, and since it has not been accompanied by an application seeking the condonation of delay ; it deserves dismissal for the reasons that it has been preferred beyond limitation. Be that as it may, the only contention put forward on behalf of the applicant is that it had gained knowledge of the passing of the decree only when it was served with a notice in the execution proceedings. Admittedly, no defence to the suit has been preferred. It must be borne in mind that the present application has been filed in respect of a suit covered by Order 37 of the Code of Civil Procedure, viz. , a summary suit. The constitutionality of Order 37 has been unsuccessfully assailed before the Hon'ble Supreme Court, which found an intelligible differentia between commercial suits and ordinary suits for recovery. The application appears to have been filed keeping Order 9, rule 13 of the Code of Civil Procedure in view, rather than Order 37, rule 3(4). In order to bring out the distinction between these two provisions they are reproduced in juxtaposition. Order 9, rule 13 : "Setting aside decree ex parte against de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peditious disposal of such claims would be immediately defeated. The distinction between these two sections has been carefully culled out by a plethora of precedents of the various High Courts. In Dwarka Cement Works Ltd. v. Rajnesh Jain [2000] AIHC 3309, it has been held that a defendant in a summary suit is bound to show special circumstances for his non-prosecuting the case as laid down in Order 37, rule 4. What logically follows is that these circumstances require greater precision in pleadings than those under Order 9, rule 13 of the Code of Civil Procedure. In Tirlok Singh v. Madan Singh Nirala, AIR 2000 HP 95, it has been opined that a defendant has to satisfy twin conditions, namely, ( i ) of disclosing sufficient cause for non-appearance as also ; ( ii ) existence of a substantial defence in the suit. As already observed, while in Order 9, rule 13 the second condition is not essential for the disposal of the application for setting aside the decree, in the case of decrees passed under Order 37, the defence must be simultaneously disclosed so that the intention of a expeditious disposal is not thrown to the winds. Similar views have also been articulated in Karumil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is sufficient reason for rejecting the application. So far as the circumstances for setting aside or recalling the ex parte decree are concerned, it has firstly been contended that the judgment-debtor can legally be ascribed with the knowledge of the ex parte decree only on receipt of notice issued by this court in execution proceedings. This contention has only to be stated for it to be rejected forthwith the judgment-debtor has been served in the suit by publication. In Order 39, rule 13 and, a fortiori, under Order 37, rule 4, the applicant must clearly and diligently discharge the duty to dispel all doubts of the adoption of dilatory techniques in the litigation. In the present case, winding up proceedings had been filed by M/s. Rahul Departmental Store Pvt. Ltd. in C. P. No. 456 of 1997. That petition eventually was dismissed. However, Shri Kuldeep Mansukhani who has signed the present applications and his affidavit in support thereof, had appeared in the winding up proceedings on March 14,2001, July 7, 2001, July 13, 2001, July 17, 2001, and on various dates thereafter. the decree holder had intervened in those proceedings and had brought it to the notice of the compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the company into his hands, he may not be aware of all the litigations pending against the company. Unless he receives knowledge of all litigation, the task of distribution of the assets would be severely crippled by passing of decrees in undefended suits. It is quite palpably clear that section 446 has been enacted with this purpose alone and not with the intention of delaying or defeating legitimate claims against the company which is in the process of being wound up. My attention has justifiably been drawn to the decisions in A.M. Padmakshi v. Sudarsan Chits ( India ) Ltd. [1987] 62 Comp. Cas. 637 (Ker.), where it was held that the mere appointment of a provisional liquidator did not affect the continuance of pending proceedings. It was opined that the plaintiff was not obliged to obtain leave of the court under section 446(1) to continue the execution proceedings. Alternatively, it was opined that even taking a narrower view, failure to obtain leave before institution of proceedings did not entail dismissal of the proceedings and the suit or proceedings instituted without leave of the court would be perfected once leave was obtained and such leave would be deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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