Latest JudgementCode of Civil Procedure, 1908

Mohd Maqbool Mir v. Ghulam Ahmad Pahloo, 2025

The Applicability of summary procedure under Order 37 CPC and remedies against ex parte decree in civil suits

High Court of Jammu and Kashmir·27 May 2025

Court

High Court of Jammu and Kashmir

Date of Decision

27 May 2025

Judges

Justice Sanjay Dhar

Citation

Acts / Provisions

Order 37 Rule 4 CPC Order 9 Rule 13 CPC

Facts of the Case

The respondent filed a suit styled under Order 37 CPC for recovery of Rs. 50,000 plus interest and Rs. 10,000 litigation expenses.
The petitioner/defendant, Mohd Maqbool Mir, did not appear before the trial court.
An ex parte decree was passed against the petitioner.
Petitioner sought to stay execution and set aside the decree by invoking Order 37 Rule 4 CPC.
The trial court dismissed the petitioner's applications, leading to a challenge before the High Court.

Whether a suit filed under Order 37 CPC but not tried under its summary procedure can allow relief under Order 37 Rule 4.
What remedies are available to the defendant when the suit is tried as an ordinary suit instead of a summary suit under Order 37?
Whether improper service of summons under the prescribed form affects the validity of proceedings if the summary procedure was not followed.

The High Court observed that the trial court failed to follow the summary procedure mandated under Order 37 CPC, such as issuing summons in the prescribed proforma and deeming allegations admitted if the defendant fails to appear.
Instead of summary procedure, the trial court adopted ordinary trial procedure by allowing the plaintiff to lead evidence and examine witnesses.
Due to this procedural deviation, the suit lost its summary suit character.
Consequently, the defendant cannot seek relief under Order 37 Rule 4 CPC since the suit is now to be treated as an ordinary suit.
The correct recourse for the petitioner is to either file an appeal against the ex parte decree or to file an application under Order 9 Rule 13 CPC to set aside the ex parte decree.
The Court further held that the ground of improper service of summons was rendered irrelevant due to the trial court’s failure to follow summary procedure.
The High Court dismissed the petition as devoid of merit but clarified that the petitioner is at liberty to pursue the proper legal remedies.

If the summary procedure under Order 37 CPC is not followed, the suit shall be deemed to proceed as an ordinary suit.
In such a situation, the defendant cannot invoke Order 37 Rule 4 for relief.
The defendant’s proper remedy lies in filing an appeal or an application under Order 9 Rule 13 CPC.
Improper service of summons under summary suit procedure loses relevance if summary procedure is not followed.
The High Court’s dismissal of the petitioner’s application was legally correct despite possible unsustainable reasons given by the trial court.

The Court emphasized the importance of strictly following the procedural mandates in summary suits under Order 37 CPC.
Summary suits provide a swift and simplified mechanism; deviation from the prescribed procedure converts the matter into an ordinary suit.
This protects the right of the defendant to seek remedies under the appropriate procedural rules of ordinary suits, such as appeal or setting aside ex parte decrees under Order 9 Rule 13 CPC.
The Court clarified the limitations on invoking Order 37 Rule 4 once summary procedure is lost, reinforcing procedural discipline in civil litigation.
The decision highlights the significance of procedural safeguards and proper legal channels for setting aside ex parte decrees.
It also demonstrates judicial caution against allowing litigants to bypass statutory procedural safeguards by misapplying provisions designed for summary suits.