A.N. Sen, J.
1. These are two appeals by the defendant in a suit filed under Order 37 of the Code of Civil Procedure.
2. Salil Kumar Paul, the first respondent in the appeals instituted a suit under the provisions of Order 37 of the Code of Civil Procedure against Hiralal Deb Gupta who happens to be the appellant before us and one Ajit Kumar Ganguli. The document on which the plaintiff Salil Kumar Paul instituted the suit under the provisions of Order 37 of the Code of Civil Procedure reads as follows:
'Rs. 50,000/- dated 24-7-68 Rs. 10/-
90 (Ninety) days after date without grace please pay to Sri Salil Kumar Paul of 26, Beadon Row, Calcutta 6 or order at Calcutta or 24 Parganas or Howrah or Hooghly the sum of Rs. 50,000/- (Rupees fifty thousand) only, with interest @ 8% per annum in case of default of payment on the due date at 22-10-1968 for value received in cash presentation for payment and notice of dishonour waived. 100 X 500 = Rs. 50,000/-Received Rupees fifty thousand In cash.Sd/- Hiralal Deb Gupta,United Bank of India Ltd.4, Clive Ghat Street;Calcutta--1.D/- 24-7-1968,Accepted by:Ajit Kumar GangulyADV/DP/CAL. Br.U. B. I. 4, Clive Ghat Street;Calcutta-1 24-7-1968. 10 Rs.Sd/- Hiralal Deb Gupta24-7-1968Sd/- Ajit Kumar Ganguly5 Rs.Sd/- Hiralal Deb Gupta24-7-1968Sd/- Ajit Kumar Ganguly'
3. Hiralal Deb Gupta made an application for leave to defend the said suit. In his application he had asked for an unconditional leave to be granted to him to appear and defend the above suit and also for appropriate directions for filing the written statement. The said application came up for hearing before Ghose, J., and on the 4th March, 1970, the learned Judge made an order granting leave to Hiralal Deb Gupta to enter appearance and file written statement on condition that he would furnish security for the sum of Rs. 20,000/- to the satisfaction of the Registrar within 8 weeks from the date of the order. The learned Judge further directed that in default of the security being furnished within the time stipulated the said application would stand dismissed with costs. Against the said order of Ghose, J., granting conditional leave Hiralal Deb Gupta preferred an appeal which is Appeal No. 90 of 1970 before us.
4. Hiralal Deb Gupta in his said Appeal No. 90 of 1970 made an application for stay a further proceedings of the suit and of the operation of the said order and the Court of appeal made a conditional order for stay on the appellant's furnishing security. The appellant Hiralal Deb Gupta failed to furnish the security in terms of the order of the Court of Appeal and the conditional order for stay by the Court of Appeal in the said Appeal No. 90 of 1970 was not effective. The suit appeared on the undefended list of Ghose, J., and the learned Judge, it is stated before us, adjourned the suit, as the learned Judge did not appear to be satisfied that the suit was properly instituted under Order 37 of the Civil Procedure Code. The suit appeared in the undefended list of Hazra, J., on 12-5-72 and the learned Judge passed a decree for the amount claimed in the suit against the said decree. Hiralal Deb Gupta has preferred another appeal which is Appeal No. 126 of 1972. Both these appeals have been heard together and are being disposed of by this judgment.
5. Mr. Sen, learned Counsel appearing on behalf of the appellant has contended that the learned trial Judge was wrong in granting conditional leave and in imposing condition. According to him the learned trial Judge should have granted unconditional leave. Mr. Sen contends that triable issues clearly arise in the instant case and according to Mr. Sen the learned Judge should have granted unconditional leave because substantial issues were raised and were required to be tried in the suit. Mr. Sen has argued that the provisions of Order 37 of the Code of Civil Procedure have no application to the document in question and a suit under Order 37 of the Code is not maintainable on the document as the said document is neither a hundi nor a promissory note nor a bill of exchange. Mr. Sen has further argued that consideration has been denied and Mr. Sen has therefore submitted that the learned trial Judge was wrong in imposing condition in the matter of granting leave to the defendant.
6. Mr. Arya Mitter, learned counsel appearing on behalf of the plaintiff respondent has submitted that no appeal lies from the order passed by the learned Judge by which he granted conditional leave to the defendant. According to Mr. Mitter the said appeal is not competent and is not maintainable. Mr. Mitter has further submitted that no appeal also lies from the decree passed in a suit under the provisions of the Code of Civil Procedure. It is the argument of Mr. Mitter that Order 37 of the Code of Civil Procedure is a self-continued Code and in view of the provisions contained in Rule 4 of Order 37 an appeal from the decree does not lie. Mr. Mitter has argued that Sec. 96 of the Code of Civil Procedure has no application to this Court and Clause 15 of the Letters Patent which governs the appeal is also of no assistance as a decree passed under Order 37 of the Code is not a judgment within the meaning of Clause 15 of the Letters Patent. On the merits Mr. Mitter has contended that the learned trial Judge was right in imposing condition in the matter of granting leave as the defence sought to be taken was not a genuine and bona fide defence. Mr. Mitter has pointed out that in the application for leave to defend no plea to the effect that the document in question is not a hundi or a promissory note or a bill of exchange was raised. It has been the contention of Mr. Mitter that in the appeal it is (not?) open to the appellant, therefore, to raise the question that the said document is not a hundi or a promissory note or a bill of exchange. Mr. Mitter has further submitted that the said document should be considered to be a hundi and Mr. Mitter has referred to various decisions in support of this submission. Mr. Mitter has contended that G. K. Mitter, J., in the case Of C. C. Sinha v. Bidhu Bhushan De, reported in : AIR1955Cal562 , was not right in his conclusion that the document in question in the said suit was not a hundi or a bill of exchange or a promissory note and the learned trial Judge did not correctly appreciate the decision of the Division Bench reported in AIR 1930 Cal 697 to which G. K. Mitter, J., referred in his decision.
7. In view of the decision of the Division Bench of this Court in the case of Banwari Lal Roy v. Sohan Lal Daga reported in ILR (1955) 1 Cal 299, the appeal of the appellant against the order of the learned trial Judge granting conditional leave to him to defend must be held to be incompetent and not maintainable. It has been clearly held in that decision that no appeal lies from such an older and the course left open to the aggrieved party is to prefer an appeal from the decree and in the said appeal from the decree the said ground of not granting unconditional leave, may be taken.
8. In the instant case as the said appeal from the order granting unconditional leave, must be held not to be maintainable, we have to dismiss the same but the grounds taken in the said appeal can be considered to be grounds in the appeal preferred against the decree. We therefore, propose to treat the grounds taken in the said appeal as grounds in the appeal from the decree. In view of the fact that we have heard both the appeals together we do not consider it necessary to direct any formal amendment of the grounds of appeal in the memorandum of appeal preferred against the decree.
9. We are unable to accept the contention of Mr. Mitter that no appeal lies From a decree passed in a suit under Order 37 of the Code of Civil Procedure. In our opinion, there is no merit in the contention, It is to be noted that there is no authority for such proposition as in our view there cannot he any authority for the proposition that an appeal will not lie from a decree passed under Order 37 of the Code of Civil Procedure. The decision of the Supreme Court in the case of Ramkarandas Radhavallabh v. Bhagwandas Dwarkadas, reported in ATR 1965 SC 1144, on which Mr. Mitter has relied has really no bearing on this question and is not authority for the proposition that an appeal will not lie from a decree passed under the provisions of Order 37 of the Code of Civil Procedure. The mere fact that provision has been made in Rule 4 of Order 37 of the Code to enable a defendant to apply for setting aside a decree docs not and cannot deprive him of the right of appeal from the decree. It is not really necessary for us to decide whether Section 96 of the Code of Civil Procedure has any application or not. There cannot be any doubt that adjudication of rights finally by the decree will undoubtedly be a judpmcnt within the meaning of Clause 15 of the Letters Patent. The decision of the Division Bench in Ronwari Lal Roy's case ILR (1955) 1 Cal 299 to which we have earlier referred makes it clear that an appeal from a decree under Order 37 of the Code of Civil Procedure lies.
10. In the facts of the instant case the very nature of the arguments and the decisions on which Mr. Mitter seeks to rely leave no room for doubt that an important issue of law, viz., whether the document in question is a hundi or a promissory note or a negotiable instrument, arises. We do not consider it necessary at this stage to decide finally on this question as in our view an important question of fact also arises in the instant case. There is a denial of receipt of consideration excepting a sum of Rs. 1155/-. As in our view serious questions are to be tried in the suit and issues of fact and law both require determination in the suit, we think the proper order for us to make will be to set aside the decree which was passed find to give an opportunity to the defendant to contest the suit. The principles as to granting of leave are fairly well settled and the Supreme Court in the case of Santosh Kumar v. Bhai Moon Singh, reported in ATR 1958 SC 321 has clearly enunciated these principles. In our opinion, applying the principles laid down by the Supreme Court in the said case unconditional leave should have been granted by the learned trial Judge.
11. We have only to note that the contention of Mr. Miner that it is not open to the appellant to urge that the document in question is not a hundi or a bill of exchange or a promissory note as the said question was not raised before the learned trial Judge is not right. As a matter of fact, this aspect is disputed. We, however, do not propose to go into the merits of the factual controversy. In the grounds of appeal in the appeal preferred against the order this ground was specifically taken. In any event, this being a pure question of law it is open to the appellant to urge the said question even if the said question was not urged before the learned trial Court. The appeal from the order grating conditional leave being Appeal No. 90 of 1970 is, therefore, dismissed as the said appeal is not maintainable and is not competent. The appeal from the decree being Appeal No. 126 of 1972 succeeds and must be allowed. We, therefore, set aside the decree dated 12th May, 1972, passed by the learned trial Judge. We grant unconditional leave to the appellant to defend the suit and the appellant will enter appearance within a week from date and will file his written statement within a fortnight after the reopening. Interim order, if any, made by the Appeal Court will stand vacated. Costs of both the appeals will be costs in the suit. Certified for two counsel.
12. We wish to make it clear that we have allowed the appeal and set, aside the decree, as in our view triable issues of fact and low arise for determination in the suit and unconditional leave to defend should therefore, have been granted. It was not necessary for us to adjudicate upon the issues involved and we have not decided any of the issues involved in this suit. It will be as it must necessarily be, for the learned trial Judge who will hear the suit to adjudicate upon the issues of fact and law involved in the suit.
13. I agree.