AIR 1958 BOMBAY 10 ::59 Bom LR 406 ::ILR (1957) Bom 520

Bombay High Court

Hon'ble Judge(s): Chagla , C.J. AND Desai , J

(A) Civil P.C. (5 of 1908) , O.37 R.4, O.9 R.6, O.9 R.13— Application to set aside decree in summary suit when leave to defend not given - Provision applicable - Limitation. Limitation Act (9 of 1908) , Art.164, Art.181— The provisions of O. 9 R. 6, do not apply to a decree passed in a summary suit and an application to set aside a decree in a summary suit is not regulated by O. 9, R, 13, but by O. 37 R. 4. O. 37 is a self-contained order which deals not only with the right of the defendant to appear in a summary suit in which a decree has to be passed if leave to defend is not given to him, but also with the procedure to be followed if the defendant wishes to have a decree passed in a summary suit set aside. Art. 164 does not apply to an application made by a defendant against whom a decree has been passed in a summary suit when he was precluded from appearing by reason of the fact that leave to defend was not given. Such an application falls under O. 37. R. 4 and the Limitation Act has not dealt with any such application. @page-Bom11 Therefore, the article that would apply would be the residuary Art. 181.(Para 2 3) AIR Com. Lim. Act, Art.164 N. 2, Art.181 N. 2, 15. (B) Words and phrases - Ex parte - M....