ORDER
S.A. Khader, J.
1. The revision is against the order of the 7th Assistant Judge, Court of Small Causes, Madras in I.A.No. 6767 of 1983 in O.S. No. 8210 of 1981. The petitioner therein, who is the 3rd defendant is the revision petitioner.
2. The respondent herein filed the above suit to recover the amount due on a promissory note dated 13.7.1978 for Rs. 5,000 executed by the first defendant and one L.T. Pandian, who is no more and whose heirs are defendants 2 and 3. The consideration for the promissory note was paid by cheque. The promisors paid interest for 5 months and defaulted to pay the subsequent interest due on the principal. To recover the full amount the plaintiff filed the suit under Order 37 of the Code of Civil Procedure. The defendants 1 and 2 remained absent. The third defendant, who is the revision petitioner, entered appearance and filed an application in I.A. No. 11170 of 1982 for leave to defend the suit. On 17.8.1982 the said application was dismissed for default and the suit was decreed on that date. Subsequently the counsel for the third defendant revision petitioner filed an application in I.A. No. 17445 of 1982 for setting aside the order dismissing the application for leave to sue. But, this application was dismissed as not pressed. Thereafter, the third defendant filed I.A. No. 6767 of 1983 under Order 37, Rule 4, C.P.C. to set aside the ex parte decree dated 17.8.1982. The learned Assistant Judge dismissed the application and hence the revision.
3. This is a suit under Order 37 of the Code of Civil Procedure. The summary procedure laid down under Order 37 C.P.C. applies to the suits of the nature set out in Sub-rule (2) of the Rule 1 of Order 37, C.P.C. Rule 3 of Order 37 lays down the procedure for the appearance of the defendant and obtaining leave by him to defend the suit ‘on disclosing such facts as may be deemed sufficient to entitle him to defend’ and leave shall be granted unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious. Unless the defendant obtains leave to defend, he shall not be allowed to appear at the hearing of the suit and defend the action. If the defendant does not apply for and obtain leave to defend the plaintiff shall be entitled to a judgment forthwith. Thereafter, the remedy of the defendant is to apply under Rule 4 of Order 37 to set aside the decree. Order 9, Rule 13, C.P.C. has no application to such suits. Order 37, Rule 4 runs thus:
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.
Under Rule 4 of Order 37 the Court may under “special circumstances” set aside the decree and grant leave to the defendant to appear and defend the suit. In invoking Order 37, Rule 4, the defendant will have to satisfy two conditions: viz., (1) there was no due service of summons in the suit or that he was prevented by sufficient cause from getting leave to defend the suit and (2) that he has a substantial defence to raise in the suit. The “special circumstances” mentioned in Rule 4 of Order 37 only contemplate the aforesaid conditions which the defendant must satisfy to entitle him to have the decree set aside and get leave to defend the action. Where the defendant files an application for leave to defend and fails to get leave, his remedy is only to prefer a revision there against and he cannot file an application under Order 37, Rule 4 to set aside the decree. Similarly where the defendant files as application for leave to defend and obtains a conditional order, his remedy is to prefer a revision against the conditional order or apply to the Court which passed the conditional order either to, review the order or to extend the time for compliance. But, if he fails to take any of the above steps and also fails to comply with the condition and if a decree is passed on his failure to comply with the condition, he cannot thereafter invoke Order 37, Rule 4 and seek to set aside the decree. To allow him to do so would amount to going behind the order refusing leave or granting conditional leave to defend. This appears to be the import of Order 37, Rules 3 and 4.
4. In the case on hand, the petitioner/ defendant has applied for leave to defend in I.A. No. 11170 of 1982. But, the application has been dismissed for default on 17.8.1982. According to the petitioner, his advocate had wrongly noted the date and has therefore failed to appear on that date. The counsel has subsequently filed an application in I.A. No. 17445 of 1982 for setting aside the order dismissing the application for leave to defend. But, as the decree has already been passed, this application was not maintainable and has been dismissed as not pressed. The application for leave to defend in I.A. No. 11170 of 1982 has been dismissed for default of the counsel and the party cannot be penalised therefor. This is, therefore, a case where the defendant has been prevented by sufficient cause from getting leave to defend and condition No. 1 set out above has been satisfied.
5. We have now to see whether the defendant revision petitioner herein has a substantial defence to raise in this suit. This action has been laid on a promissory note executed by the defendant and by late L.T. Pandian, whose heirs are defendants 2 and 3. The petitioner-third defendant impugns the promissory note as a forgery. But, the first defendant, who is the co-executant of the promissory note has not challenged the truth of the promissory note and questioned its validity. In the circumstances, leave can be granted to the petitioner on some terms.
6. In the result, the revision petition is allowed, the decree is set aside so far as the revision petitioner/third defendant is concerned and he is granted leave to defend on his depositing into Court half of the amount claimed in the plaint. No costs. Time for payment three weeks from today.