P.N. Bakshi, J. - (1.) THE Plaintiff instituted a suit on 31 -5 -76 under Order 37 Code of Civil Procedure, on the basis of two promissory notes dated 1st June, 1975 for a sum of Rs. 10000/ - each executed by the Defendant No. 1 in his favour. Both these promissory notes contained the signature of Defendant No. 2 as a surety. Defendant No. 1 did not contest the suit but Defendant No. 2 filed an application for rejecting the plaint on the ground that the suit does not lie under Order 37 Code of Civil Procedure, inasmuch as on the date of the institution of the suit, Order 37 Code of Civil Procedure as amended did not apply to a guarantee on the basis of which the present suit has been filed. This contention has been repelled by the Civil Judge, Dehradun vide its order dated 6th February, 1979. Hence this revision.
(2.) I have heard learned Counsel for the parties and have also perused the impugned orders and the annexure which have been filed in this Court by both the parties. It appears that after the suit had been instituted, Defendant No. 2 had filed an application on 20th June, 1976 in which he prayed for permission for leave to defend the suit. The Court below allowed this application and permitted the Defendant to defend the suit subject to his filing security for the amount in suit, or getting property covering the amount in suit attached within a month. This order was passed on 2nd March, 1977. Aggrieved thereby Revision No. 776 of 1977 was filed by the surety, Ramesh Chandra Jain in this Court, challenging the order of the Civil Judge, Dehradun. This revision was dismissed on 20th April, 1977 by Hon'ble Chief Justice K.B. Asthana, who was of the view that the Court below had jurisdiction to put the Defendant to terms under the provisions of Order 37 Rule 3(5) Code of Civil Procedure. It may be mentioned that the directions of the Court below regarding furnishing of the security by Defendant No. 2, have not been complied with to this date. However, after the rejection of his revision by the High Court, the instant objection has been filed on the ground that the applicant was a guarantor and that he could not be impleaded as a Defendant in the suit. Under Order 37 Code of Civil Procedure as amended as such the suit is liable to be dismissed.
(3.) THE argument of the applicant's Counsel is that Order 37 Code of Civil Procedure was amended on 1st February, 1977 by Code of Civil Procedure Amendment Act -76. Section 97(2)(x) of the Amending Act runs as follows: The provisions of Order XXXII of the First Schedule, as amended by Section 84 of this Act, shall not apply to any suit pending before the commencement of the said Section 84, and every such suit shall be dealt with and disposed of as if the said Section 84 had not come into force.;