ABHILASHA KUMARI, J. - (1.) RULE be issued. Mr.Nirad D.Buch, learned advocate, waives service of notice of Rule on behalf of the respondent.
(2.) AS this Court has issued notice for final disposal, the petition is being finally decided at this stage. By preferring this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order dated 01.10.2012, passed by the learned Principal Senior Civil Judge, Porbandar, in Civil Miscellaneous Application No.47 of 2009, whereby the application of the respondent under Order 37 Rule 4 of the Code of Civil Procedure, 1908 ("the Code" for short), has been allowed and the judgment and decree passed in Summary Suit No.2 of 2005, has been set aside.
(3.) BRIEFLY stated, the relevant facts of the case are that the petitioner, M/s.Cham Ice and Cold Storage, which is the original plaintiff, filed Summary Suit No.2 of 2005, against the respondent, before the learned Second Additional Civil Judge, Porbandar, for recovery of certain amounts due to it, under the provisions of Order 37 of the Code, claiming an amount of Rs.83,57,200/. The petitioner filed summons for judgment, to which the respondent (original defendant), filed an application for leave to defend. After hearing the parties, the Trial Court granted leave to defend on condition that the respondent deposits an amount of Rs.25 lakhs, within a period of thirty days from the date of the order. The respondent challenged the order granting conditional leave to defend, by filing a petition in this Court, being Special Civil Application No.17336 of 2006, which was converted from Appeal from Order No.210 of 2006. Vide order dated 11.08.2006, the said petition was dismissed. Being aggrieved by the above order, the respondent filed Letters Patent Appeal No.53 of 2007, which came to be dismissed by the Division Bench, vide judgment dated 07.07.2008. The said judgment of the Division Bench has attained finality. According to the petitioner, the defendant was, thus, liable to deposit an amount of Rs.25 lakhs as conditional leave to defend. However, the respondent failed to deposit the amount.;