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Judgment
J.V. Gupta, J.—This revision petition is directed against the order of the Subordinate Judge, First Class, Chandigarh, dated January 8, 1986, whereby the application filed on behalf of the Petitioner for leave to defend under Order XXXVII Rule 3, Code of Civil Procedure, (hereinafter called the Code), was declined being beyond the period of ten days. Consequently, the suit for the recovery of Rs. 68,500/- as principal and Rs. 21,500/- as interest was decreed with costs and future interest at the rate of 12 per cent per annum.
It is not disputed that the Petitioner was served with the summons for judgment on September 10, 1985 and, in turn, he put in his appearance on September 19, 1985 and filed the application under Order XXXVII Rule 3 of the Code. According to the learned Subordinate Judge, though the application was moved on October 18, 1985, and was within ten days from the date of the service of the summons for judgment under Order XXX VII Rule 3(5) of the Code, yet the same was filed before the Reader of the Court as the Presiding Officer was on leave and, therefore, the said application could not be said to be within time. The said application before the Court came up for hearing on October 24, 1985, when according to the Subordinate Judge, it was barred by time. Consequently, the same was dismissed and the Plaintiffs suit decreed as noticed above. Dissatisfied with the same, the Petitioner has filed this revision petition in this Court.
A preliminary objection has been raised on behalf of the Plaintiff-Respondent that since the suit has been decreed and an appeal against the same was competent or the Petitioner could move under Order XXXVII Rule 4 of the Code, the petition u/s 115 of the Code was not maintainable. In support of the contention, the learned Counsel relied upon Khem Chand v. Hari Singh A. I. R. 1979 Del 7.
As regards the preliminary objection, the same is overruled in view of the judgment of this Court in M/s Shivalik Poultry Farm v. Indian Bank (1985) 87 P. L. R. 746, where a similar objection was raised and repelled and it was held that the revision against such an order was competent.
No meaningful arguments could be raised on behalf of the Plaintiff-Respondent to sustain the impugned order on merits. The Petitioner could not be allowed to suffer simply because the Presiding Officer was on leave on October 18, 1985, when the application for leave to defend was moved within time.
Consequently, this revision petition succeeds and is allowed. The impugned order is set aside and as a result the decree passed against the Petitioner also stands set aside. The learned Subordinate Judge is directed to decide the application filed by the Petitioner under Order XXXVII Rule 3 CPC afresh in accordance with law. The parties have been directed to appear before him on May 28, 1986. The said application be decided on merits in accordance with law that day.