2007 (1) TMI 632

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....der an application filed under Article 227 of the Constitution of India filed by the respondents herein against a judgment and order dated 27.05.2005 passed by a learned Civil Judge, Karkardooma, Delhi was allowed. 3. Appellant herein filed a suit which was marked as Suit No. 303 of 2004 for recovery of a sum of Rs. 2,93,987/- with interest on account of dishonoured cheques. The said suit was filed in terms of Order XXXVII of the Code of Civil Procedure (Code). The 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. The learned Civil Judge refused to do so by an order dated 27.05.2005 opining: I am convinced with the plaintiff's conten....

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....of institution of the present suit till realization. Decree sheet be prepared. An application filed there against by the respondents has been allowed by the impugned judgment. The appellant is, thus, before us. 5. The short contention raised by Mr. Jitender Sharma, learned senior counsel appearing on behalf of the appellant, is that keeping in view of the fact that an appeal was maintainable under Section 96 of the Code against the judgment and decree passed by the learned Civil Judge, the application under Article 227 of the Constitution of India was not maintainable. 6. The contention of Mr. V.L. Madan, learned Counsel appearing on behalf of the respondents, on the other hand, is that the writ petition was maintainable as t....

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....ersy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include: (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. A "judgment" is defined under Section 2(9) of the Code to mean "the statement given by the Judge on the grounds of a decree or order". 8. An order refusing to grant leave is a judgment within the meaning of Letters Patent of the Chartered High Courts. [See Shah Babulal Khimji v. Jayaben D. Kania and Anr. [1982]1SCR187 ] A decree passed in a summary suit where leave to defend the suit has been refused is a....

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....eal, 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 to take a different view. [See V.S. Saini and Anr. v. D.C.M. Ltd. AIR2004Delhi219 .] 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. 11. A contentious issue, viz., maintainability of writ petition without challenging the decree has been raised. We, however, in this case, do not intend to go into the said issue, inter alia, for the reason that the learned Judge has not assigned any reason in s....