1. This is an appeal from a degree in a suit on a promissory note instituted under Order XXXVII of the Code of the Civil Procedure, in which leave to defend has been refused. Rule 3 of that Order requires the Court to give, the defendant leave to appear, and defend the suit upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration or such other facts as the Court may deem sufficient to support the application. This is paraphrased in the summons to be served on the defendant under Rule 2(1), Form No. 4 of Appendix B as follows:
Leave to appear may be obtained on an application to the Court supported by affidavit...showing that there is a defence to the suit on the merits, or that it is reasonable that you should be allowed to appear in the suit,' which would make the scope of the suit like that of the well-known Order XIV, Rule 1 of the Supreme Court Rules. The language of Rule 3 is taken from the Bills of Exchange Act, V of 1866, which was interpreted by Phear, J. in Vonlintzgy v. Narayan Singh 6 B.L.R. App. 64 , where he applied the rule laid down by Bramwell, Baron, in Agra and Musterman's bank v. Leghton (1866) 2 Ex. 56 , with reference to the corresponding section in England. The intention was, the learned Baron observed, 'that, where there was no presence for a defence, the parties sued should not be allowed to defend, and the holder should have judgment as of course; but that if the defendant baa a real, I do not say good, defence, he should have leave to appear and set it up. As cases, however, sometimes occur where an apparently real defence is shown, but its sincerity is doubtful, there the defendant is let in to defend only on the terms of bringing the money into Court.' The present suit was brought on a promissory-note for Rs. 17,000 given by the defendant to his wife in settlement of a suit brought by her for separate maintenance. We cannot say that the affidavits show that there is no presence for a defence, and we think, that, instead of refusing leave to defend, the Subordinate Judge should have given leave to defend on condition of payment of the amount claimed into Court.
2. We accordingly direct that, on the payment of the amount claimed into Subordinate Judge's Court being certified to this Court within 6 weeks, the decree be set aside and the suit remanded for disposal according to law. Costs to abide, and in default of payment, this appeal do stand dismissed with costs,