Suit filed under order 37
sudhirghabasu
(Querist) 26 March 2017
This query is : Resolved
sir/madam., good evening to you all. i am sudhir adv. from chennai. The Plaintiff had filed a Money suit under order 37. the Defendant had not appeared before the court. procedure under rule 3 of order 37 not complied by the defendant. suit was decreed in favour of the plaintiff. Execution petition was filed by the Plaintiff. Now attachment will be ordered. only at this time the Defendant is approaching me to save.
1. whether i am entitled to file a set aside petition to set aside the exparte decree. If yes what is the procedure.
2. whether the e.p can be stayed if set aside petition is filed.
3. under which provision of c.p.c i am entitled to file the set aside petition. under order 37 rule 4 or else any other provision. Pl help me with relevant judgments.
the Plaintiff had already received the money. Despite of that, forged his signatures and foisted a false document i.e. a promissory note forging the signature of the defendant he has filed the suit. though these are points for trial now i have to enter into the case. therefore i require your help.
Ms.Usha Kapoor
(Expert) 27 March 2017
Order 37 rules 1 to 4 you can file leave to defend application and also set aside petition a common application within 10 days of date OF EXPARTE ORDER UNDER ORDER 37 . IF THERE IS DELAY YOU CAN FILE AN APPLICATION TO CONDONE DELAY UNDER ORDER 9 RULE 13 cpc. and set aside application under the same order .So your remedy lies under order 37 rule 1 to 4 ND SETTING ASIDE LIES IN RULE 4.
mahendra rai jain
(Expert) 27 March 2017
YEs, you can file application under order 9 r 13 cpc for set aside the exparte decree along with application of sec 5 of limitation act for condonation of delay mentioning suitable reason for non apprearence. Despite of this file another application in execution procedure to stay the execution process till the ddecesion of the application of O. 9 R. 13
Adv. Yogen Kakade
(Expert) 27 March 2017
I agree. Applying for setting aside the exparte decree is an option for you. And while filing an application for condonation of delay, mention justified grounds.
sudhirghabasu
(Querist) 27 March 2017
thank you so much my dear learned friends for the help.
Rajendra K Goyal
(Expert) 27 March 2017
Agree with the expert Adv. Yogen Kakade.
