- (1.) THIS is a judgment-debtors Notice of Motion to set aside the decree passed against them. Rule 4 of Order XXXVII reads as follows:-- "4. Power to set aside decree.---After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit. " Thus, the real question for determination is whether there are special circumstances to set aside the decree.
(2.) THE plaintiff filed the suit for recovery of money after obtaining leave under Clause 12 of the Letters Patent. In this suit, the plaintiff took out a summons for judgment which was served on the defendants on 18-4-2001. They were served with a writ of summons under Order XXXVII on 24-2-2001.
(3.) THE defendants applied for revocation of this leave under Clause 12 on 27-9-2002. Having done so, they applied for stay of the summons for judgment taken out by the plaintiff. This stay was refused on 11-10-2002 by the Court trying the summons for judgment. In the Chamber Summons for revocation of leave under Clause 12, the pleadings were complete. On 7-1-2001 when the matter came up before the Judge hearing the chamber summons for revocation of leave under Clause 12, the plaintiff sought an adjournment. The matter was adjourned to 14-1-2001 on which date the learned Chamber Judge did not preside. On this very date, the Court hearing the summons for judgment decreed the suit under Order XXXVII, Rule 3 of the C. P. C. on the ground that there is no reply filed by the defendants nor is there any affidavit disclosing the ground on which the leave to defend can be granted. The defendants seek to set aside this decree.;