Amberson Marten, Kt., C.J.
1. In this case we have before us two appeals from the learned Chamber Judge. Appeal No. 53 of 1929 is from an order of September 2, 1929, giving conditional leave to the minor defendants Nos. 2 and 3 to defend the suit on depositing Rs. 30,000 in Court on or before September 16,1929. The other appeal, viz., No. 57 of 1929, is from an order of September 24, 1929, against these minor defendants for the amount of the decree claim, in default of security not having been furnished. The latter decree was passed ex parte.
2. A preliminary objection is taken by the respondents that no appeal lies from the first order imposing the condition in question : that that being so, the second order was rightly passed ex parte, and that no appeal lies from that also and we were referred to certain authorities of the Calcutta High Court and this Court as to the meaning to be given to the word ' judgment' in Clause 15 of the Letters Patent.
3. Taking Appeal No. 57 first, that is from a final judgment against the minors, and it is clear, we think, that technically an appeal lies from that judgment, though whether on the merits it would have the slightest chance of success is another matter. That distinction between ' whether an appeal lies ' and ' whether it has any chance of success ' was indeed pointed out in the Full Bench case of Narayan Putapa v. Vaihunt Subaya IRL (1926) 51 Bom. 67, 28 Bom. L.R. 1245 which my brother Kemp has referred to. There I said (p. 75) :-
But to avoid any misconception I may add that though pro forma an appeal may lie, still in the vast majority of cases, the appeal will be one of those known as ' hopeless', because the conditions imposed by the lower Court will be reasonable ones, and accordingly if they are not fulfilled, the only result will be that the appeal will be dismissed with costs.
4. No instance has been cited to us of a summary suit before the appellate Court on an appeal from an order giving leave to defend, and also on an appeal from the final order. Consequently the decision in Sukhlal Chundermull v. Eastern Bank, Ld. ILR (1915) Cal. 735 is not exactly in point, because at the most that was a decision of the Calcutta Appellate Court, that an order directing the defendant to give security as a term on which leave to defend should be given is not a 'judgment' within the meaning of Clause 15 of the Letters Patent and is not appealable.
5. On the other hand in Radha Kissen Goenka v. Thakursi Das Khemha ILR (1925) Cal. 412 the Calcutta Appellate Court appears to have entertained. an appeal from an order of the lower Court on the summary procedure under the Calcutta High Court Rules. But no copy of those Rules is before us, and so I will say nothing further about that case.
6. On the two appeals that we have before us, I would hold that an appeal does lie in Appeal No. 57 from the final order of September 24, 1929, and further that in presenting that appeal the appellants are entitled to challenge the interlocutory order of September 2, 1929, which in effect has deprived them of their right to defend. That being so, it is unnecessary in the present case for us to decide whether Appeal No. 53 from that interlocutory order will also lie.
7. Next turning to the merits of the case, the learned Judge was entitled to impose conditions here as a term for giving leave to defend, as 'has been pointed out by my brother Kemp under Order XXXVII, Rule 3. It has been urged that the security required from these minors for Rs. 30,000 was really prohibitive, and that in effect it amounted to a refusal of leave to defend. On the other hand it is urged that no leave whatever should have been given, and that in any event under all the circumstances of the case the amount imposed was reasonable.
8. The plaintiffs here were suing on a Khata of the family firm of Rambux Laxmandas signed in the plaintiffs' ledger by the manager and sole adult male member of the family, Mathuradas Jamnadas, defendant No. 1. It is attacked in an affidavit by Genabai, the guardian ad litem of defendants Nos. 2 and 3, in effect on these grounds, that the transactions were speculative; that they were of defendant No. 1 alone ; that the family business was that of commission agents and not speculators ; and that accordingly the minors are not liable on this particular Khata.
9. Now it is very easy for a person to put in a general affidavit of this kind but I attach great importance to this that the deponent does not make the slightest attempt to pick out any particular items in this account as being either speculative, or outside the family business. Her statement is quite general. Nor does it follow that a commission agent, might not be involved in speculative transactions, particularly if it be the fact, as it is alleged here, that the family in question were Marwaris.
10. In fact the plaintiffs have put in a long affidavit, in answer to the affidavit of the widow, in which they have denied that the transactions were either speculative or wagering, and in which they said that the defendants were not mere commission agents but cotton and general merchants. They further stated that the widow Genabai had falsely stated in her affidavit that she had left defendant No. 1 because of his speculative transactions and was living by herself. The affidavit stated specifically that they were all still living together, and that this was a false and misleading statement. The affidavit further urged that this was a mere device by defendant No. 1 to delay the payment of the plaintiffs' debt; that he himself had previously put in an application for leave to defend ; that he had been granted leave on his depositing Rs. 30,000, which he failed to do, and that accordingly he then put up this lady to make this false and vexatious claim on behalf of the minor defendants.
11. To that affidavit there was no reply made by the lady. There was no application for an adjournment or anything of the sort. So far as I can see, if when the summons for leave to defend came before the learned Judge, the defendants had said: ' We want to inspect the items in this Khata : we have been refused permission to see those items : and if allowed inspection, we will point out to the Court the items on which we rely,' I am satisfied that in that case the Court would have granted any reasonable adjournment, and would have directed the plaintiffs to give any desired inspection. But I have not the smallest doubt that any necessary inspection to ascertain as to how the Khata in fact was made up, could have been obtained from the books of the defendant firm itself. It would be most difficult for defendant No. 1 to deny to the minor defendants access to the books of the defendant firm.
12. Under these circumstances it seems to me that there were ample grounds before the learned Judge on which he could rightfully come to the conclusion either that leave to defend should not be given at all, or, alternatively, that very stringent terms should be imposed as a condition for giving leave to defend. Under these circumstances I am not prepared to interfere with the discretion which the learned Judge exercised. In fact I may go further and say that with all respect I agree with the conclusion at which he arrived.
13. I would, accordingly, dismiss both these appeals with costs.
N. Kemp, J.
14. I agree.