Code of Civil Procedure, 1908 | Summary Procedure

Order XXXVII Rule 4 CPC - Power to Set Aside Decree

Order XXXVII Rule 4 of the Code of Civil Procedure, 1908 (CPC) empowers a court, in special circumstances, to set aside a decree passed in a summary suit. The court may also stay or set aside execution and permit the defendant to appear and defend the claim, subject to appropriate terms.

Statutory provision: Order 37 Rule 4 CPC

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.

Source: Code of Civil Procedure, 1908 - official India Code text (PDF). The applicability of any local amendments or High Court rules should be checked for the court concerned.

Meaning and scope of Rule 4

Summary suit: A special, expedited civil procedure under Order XXXVII for specified monetary claims, including qualifying written contracts, negotiable instruments and guarantees. A defendant generally must follow the appearance and leave-to-defend procedure prescribed by Rule 3.

Decree: The formal expression of an adjudication conclusively determining rights in a suit, as defined in Section 2(2) CPC, subject to the statutory inclusions and exclusions.

Special circumstances: The CPC does not provide an exhaustive definition. The Supreme Court has explained that the expression refers to circumstances of an exceptional or unusual character, assessed on the facts of the individual case. Failure of proper service of summons may constitute such a circumstance.

Execution: The process by which a court decree is enforced. Rule 4 expressly enables the court, where necessary, to stay or set aside execution while addressing the decree.

When can a summary suit decree be set aside?

The defendant should establish special circumstances warranting reopening of the decree and disclose facts constituting a defence that would justify leave to defend. Merely explaining non-appearance, without indicating a potentially sustainable defence, may not suffice.

In Rajni Kumar v. Suresh Kumar Malhotra (2003), the Supreme Court distinguished this remedy from the ordinary procedure for setting aside an ex parte decree under Order IX Rule 13 CPC. It held that an applicant invoking Order XXXVII Rule 4 must also disclose grounds for leave to defend. Read the Supreme Court judgment (official PDF).

Reliefs that may be requested

• Setting aside the summary suit decree under Order XXXVII Rule 4.
• Staying or setting aside execution, where necessary.
• Permission to enter appearance and leave to defend the suit.
• Other consequential directions on reasonable terms imposed by the court.

The Supreme Court has indicated that the connected reliefs needed by the applicant should ordinarily be sought together, rather than through successive applications. The court retains discretion over terms and conditions.

Practical steps for filing an application

1. Identify the decree, case number, date of judgment and the court that passed it.
2. Explain with specific dates and evidence the exceptional circumstances that prevented compliance with the summary procedure.
3. Set out a substantial or otherwise legally arguable defence, supported by documents and an affidavit where appropriate.
4. Seek setting aside of the decree, any necessary stay of execution and leave to defend in the same application.
5. Address limitation and any delay promptly; the applicable limitation position depends on the remedy and circumstances.

Related CPC provisions

Order XXXVII Rule 1: Courts and classes of suits covered by summary procedure. Rule 2: Institution of summary suits. Rule 3: Appearance by defendant and leave to defend. Order IX Rule 13: General remedy concerning ex parte decrees, distinct from the special Order XXXVII Rule 4 framework. Section 2(2): Definition of a decree.

Frequently asked questions

Can an ex parte summary suit decree be set aside?

Yes, where the court is satisfied that special circumstances exist and the applicant discloses grounds justifying leave to defend, subject to the applicable law and facts.

Is non-service of summons relevant?

Yes. Improper or non-service may amount to a special circumstance, but the applicant should also explain the defence to the underlying claim.

Does filing a Rule 4 application automatically stop execution?

No. A stay should be expressly sought; it operates only if ordered by the competent court.

This article explains the general central CPC position. Local amendments, court rules, limitation requirements and subsequent binding decisions may affect an individual case.