Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Code of Civil Procedure O.XXXVII rr. 3 1908 4 5 and 6 and O.XLI |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | 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 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 dependent order not applicable in such a case-Even if this 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 open-Directions issued-Practice and procedure. Words and Phrases: 'Decree','order' and Judgment'-Meaning of in the context of Civil - 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 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.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. 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. |
Judge | Hon'ble Mr. Justice S.B. Sinha |
Neutral Citation | 2007 INSC 44 |
Petitioner | Ajay Bansal |
Respondent | Anup Mehta & Ors. |
SCR | [2007] 1 S.C.R. 953 |
Judgement Date | 2007-01-16 |
Case Number | 230 |
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