LexAJAY BANSAL versus ANUP MEHTA & ORS.
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) AJAY BANSAL A v. ANUP MEHTA & ORS. JANUARY 16, 2007 [S.B. SINHA AND MARKANDEY KA TJU, JJ.] B ... ·-y Code of Civil Procedure, 1908; O.XXXVII rr. 3, 4, 5 and 6 and O.XLI r. 1; ss. 2(2), 2(9), 96 and 105/Constitution of India, 1950; Article 227: Suit for recovery of certain amount with interest-Decreed by Civil c Court-Challenge to-Allowed by High Court-On appeal, Held: An order refusing to grant leave is a judgment-Passing decree after refusing to grant leave to defend almost instantaneous-Application under Article 227 not maintainable when appeal lies against an order/judgment- Theory of depen.dent order not applicable in such a case-Even if this D Court were to set aside order refusing leave to defend, decree passed may • not fall by itself-It is not proper to interfere with the decree in the facts and situation of the case-Defendant, however, could file an appeal against the decree and then could challenge the order refusing leave to defend in terms of Section 105 C.P.C.-Writ petition directed to be converted into an appeal-All contention of the parties shall remain E open-Directions issued-Practice and procedure. Words and Phrases: 'Decree~ 'order' and Judgment'-Meaning of in the context of Civil F - Procedure Code, 1908. Appellant filed a suit in terms of order 37 of the Code of Civil Procedure, 1908 for recovery of a sum of Rs. 2,93,987 with interest on account of dishonored cheques. Respondents filed an application purported G to be under Order XXXVII, Rule 3(5) of the Code praying for grant of leave to defend the said suit, which was dismissed by the Civil Court and a final judgment and decree was passed for a sum of Rs. 2,83,987 with interest at the rate of 12% thereon. An application under Article 227 of the Constitution filed thereagainst was allowed by the High Court. Hence the present appeal. H 953 --.,.,_ 954 SUPREME COURT REPORTS [2007] 1 S.C.R. A Appellant contended that keeping in view the fact that an appeal was -< maintainable under Section 96 of the Code against the judgment and decree passed by the Civil Court, the application under Article 227 of the Constitution of India was not maintainable. B Respondents submitted that the writ petition was maintainable as they could not have been put to undue hardship of depositing the entire decretal amount in terms of Order XLI Rule 1 of the Code of Civil Procedure although they had made out a good case for obtaining leave to defend the '1' suit. c Allowing the appeal, the Court HELD: 1.1. An order refusing to grant leave is a judgment within the meaning of Letters Patent of the Chartered High Courts. [Para 8] [958-B] D Shah Babula! Khimji v. Jayaben D. Kania and Another, [1981] 4 SCC 8, relied on. .... 1.2. A decree passed in a summary suit where leave to defend the suit has been refused is almost automatic. The consequence of passing a decree cannot be avoided. Ordinarily, an application under Article 227 of the E Constitution of India would not be maintainable where an appeal lies. An appeal lies from the decree under Section 96 of the Code. [Paras 9 & 10) [958-C-D] 1.3. Theory of "dependant order" may not apply in a case of this nature because even if this Court were to set aside the order refusing leave F to defend, the decree subsequently passed may not fall by itself. It has still - to be set aside either by resort to Order XXXVII Rule 4 or by way of an appeal, or by some other mode known to law. In a given case like the present one as it may not be proper to interfere with the decree merely because in an appeal against an order refusing leave to defend, this Court is inclined G to take a different view. The defendant in such a case can also be left to appeal against the decree and therein challenge the order refusing leave to defend in terms of Section 105(1) of the Code. [Paras 12 & 13) [958-G-H, 959-A-B) ' " ,>' H V.S. Saini & Anr. v. D.C.M Ltd., AIR (2004) Delhi 219, relied on. I AJAYBANSALv.ANUPMEHTA [SINHA,J.] 955 2.1. A contentious issue, viz., maintainability of writ petition without A challenging the decree has been raised. This Court, in this case, does not intend to go into the said issue, inter alia, for the reason that the High Court has not assigned any reason in support of the impugned judgment. (Para 14) [959-C] 2.2. In the facts and circumstances of the case, interest of justice would be met by directing the writ petition to be co
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