of the Civil Procedure Code provides for the summary procedure

 The provision has been made in order to prevent the unreasonable obstruction laid down by the defendant, who has no defence.

 Unlike other civil suits, the trial in summary suits begins after the court grants leave to the defendant to contest the suit.

 The court dealing with summary suits can pass the judgment in the favour of the plaintiff if

● the defendant has not applied for leave to defend

● or if such application has been made but refused,

● or the defendant who is permitted to defend fails to comply with the conditions on which the leave to defend was granted

 The important feature of “summary suit” is that here the Defendant is not allowed to defend the suit, unless he takes the permission from court.

 Defendant is allowed to defend himself only if according to the affidavit filed by him; it is must for the plaintiff to prove charges against him.

 If by affidavit by Defendant, it appears that he has no defence, then court will decline him the permission and pass necessary orders in favour of plaintiff.

✔ Order-37 Rule-1(1) : Scope of O-37 : Courts and classes of suits to which the Order is to apply :

 (1) This Order shall apply to the following Courts, namely,—

 (a) High Courts, City Civil Courts and Courts of Small Causes ; and

 (b) other Courts:

● Provided that in respect of the Courts referred to in clause (b),

 the High Court may, by notification in the Official Gazette, restrict the operation of this Order only to such categories of suits as it deems proper,

 and may also, from time to time, as the circumstances of the case may require, by subsequent notification in the Official Gazette, further restrict, enlarge or vary, the categories of suits to be brought under the operation of this Order as it deems proper.

✔ O-37 R-1(2) : Kinds of Summary Suits :

 1. Suits upon bills of Exchanges, hundies or promissory notes;

 2. Any suit filed by the plaintiff for recovery of a debt / money payable by the defendant according to a written contract,

 3. In case of an enactment wherein the amount to be recovered is a fixed amount of money, or a debt other than a penalty, or

 4. A guarantee, where the claim against the principal is in respect of a debt or for money only

✔ O-37 R-2 : Institution of Summary Suits :

 Order 37 rule 2 deals with the institution of summary suits.

 Such suit may be instituted by presenting a plaint which shall contain

-● 1. a specific averment to the effect that the suit is filed under this Order;

● 2. that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint;

● 3. the following inscription, immediately below the number of the suit in the title of the suit, namely:-”(Under Order XXXVII of the Code of Civil Procedure,)”

✔ O-37 R-3 : Procedure for the appearance of defendant :

 Order 37; rule 3 prescribes the mode of service of summons etc. and leave to defend.

 The defendant is not entitled to defend the suit unless he enters an appearance within 10 days from the service of summons.

 Such leave will be granted only if the affidavit filed by the defendant discloses such facts as may be deemed sufficient to entitle him to defend.

 Such leave may be granted to him unconditionally or upon such terms as may appear to the court or judge to be just.

 Leave to defend shall not be refused unless the Court is satisfied that

● the facts disclosed by the defendant do not indicate that he has a substantial defence to raise

● or that the defence intended to be put up by the defendant is frivolous or vexatious:

● The part of the amount claimed by the plaintiff and admitted by the defendant is not deposited by him in the Court.

 The court then pronounces the judgement and passes a decree. Under special circumstances, the Court may, after decree, set aside the decree and if necessary stay or set-aside the execution and may give leave to the defendant to appear and to defend the suit.

✔ O-37 R-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.

✔ O-37 R-5 : Power to order bill, etc., to be deposited with officer of Court :

 In any proceeding under this Order the Court may order the bill, hundi or note on

which the suit is founded to be forthwith deposited with an officer of the Court,

● and may further order that all proceedings shall be stayed until the plaintiff gives security for the costs thereof.

✔ O-37 R-6 : Recovery of cost of noting non-acceptance of dishonoured bill or note :

 The holder of every dishonoured bill of exchange or promissory note

● shall have the same remedies for the recovery of the expenses incurred in noting the same for non-acceptance or non-payment,

● as he has under this Order for the recovery of the amount of such bill or note.

✔ O-37 R-7 : Procedure in suits :

 Save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner.

✔ Difference Between Summary Suit and Ordinary Suit :

 1. In the ordinary suit the defendant is entitled to defend the suit as of right. But in a summary suit

 he is not entitled for the same except with the leave of the court.

 2. In an ordinary suit the decree cannot be set aside by the trial court except in review. But in the

 summary suit the trial court may set it aside under special circumstances

 3. The summary suit must be brought within 1 year from the date on which the debt becomes

 due and payable, whereas the period of limitation for suits for ordinary cases under negotiable

 instrument is 3 years.

This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

➔ Discuss : Execution of Decree (Sec.52-54) : Concept, General Principles, Procedure

& Powers.

✔ Discuss about various modes of execution of decree and state the powers of court executing a decree. (Dec-2015)

✔ "A Court executing a decree cannot go beyond a decree." Discuss. (Nov-2014) ANSWER :

✔ Refer :

 https://www.lawfinderlive.com/bts4/cpc.htm

✔ Intro :

 Term `Execution' has not been defined in Code of Civil Procedure.

 However expression "Execution" means,

● enforcement of decrees and orders by the process of the court, so as to enable the decree holder to realise the fruits of the decree.

✔ Which courts may execute decree ?

 Sec-38 :

● A decree may be executed either by the court which passed it

 or by the court to which it is sent for execution.

 Sec-37 :

● Following courts fall within the expression "Court which passed the decree"

:- (i) Court of first instance by which decree is actually passed;

 (ii) The court of first instance in the case of decree passed by appellate court;

 (iii) Where the court of first instance has ceased to exist the court which would have jurisdiction to try the suit at the time of execution;

 Thus, Section 37 has given very wide definition of “Court which passed the decree”

● for the purpose of facilitating the decree holder to realise the fruits of decree passed in his favour.

✔ Application for execution : [Order 21 Rule 10 and Rule 11]

 The execution proceedings can be started only after the delivery of judgment by the court and preparation of the decree.

 All proceedings in execution are started by an application for execution,

● which can be oral or written .

 O21 R10 :

● where the holder of a decree desires to execute it,

 he shall apply to the court which passed the decree

 or to the officer (if any) appointed in this behalf,

● where the decree has been sent under the provisions herein before contained to another court then,

 decree holder shall apply to such court or to the proper officer thereof.

 Oral application for execution :

● O21 R11(1) :

 Where a decree is for the payment of money the court may,

• on the oral application of the decree-holder at the time of the passing of the decree,

• order immediate execution thereof by the arrest of the judgment debtor, prior to the preparation of a warrant,

• provided judgment debtor is within the precincts of the court.

 Written application for execution :

● O21 R11(2) :

 Save as otherwise provided by R11(1),

• every application for the execution of a decree shall be in writing signed and verified by the applicant

• and shall contain particulars as provided in R11(2).

 Application for arrest and attachment of properties of judgment debtor :

● O21 R11A, R12 and R13 deal with certain specific applications for execution.

 Rule 11-A provides that

• where an application is made for arrest & detention of judgment debtor,

• it shall state, or be accompanied by an affidavit, stating the grounds on which arrest is applied for.

 Rule 12 provides for application for attachment of movable properties not in