TANUSHREE ART PRINTERS Vs. RABINDRA NATH PAL

JUDGEMENT

(1.) I have had the privilege of reading the judgment of my learned Brother. While I concur with the views expressed by him, having regard to the fact that we have been unable to accept an earlier Division Bench judgment on one of the issues involved in this case, I would like to express my view in a few brief paragraphs.

(2.) Two issues have arisen for our decision in this appeal. The first is the question of maintainability of an appeal from an order granting conditional leave to defend under Order 37 of the Code of Civil Procedure. The second relates to the merits of the order under appeal which arise for decision only if we decide the first in the affirmative.

(3.) On the first issue a Division Bench of this court in M/s Merchants of Traders (P) Ltd. v. M/s Sarmon Pvt. Ltd. : 1997(1) CHN 286 has held that an appeal from such an order as is now under appeal before us, was not maintainable as a judgment under Clause 15 of the Letters Patent. In arriving at this decision the Division Bench followed two earlier decisions on the point namely, Hiralal Deb Gupta v. Salil Kumar Paul : AIR 1973 Cal 320 and Bonwarilal Roy v. Sohanlal Daga : ILR (1955) 1 Cal 299. The ratio of those two earlier decisions was that the order was not appelable because by refusing leave to defend or by granting conditional leave to defend under Order 37, it did not necessarily mean that the plaintiff would succeed in the suit. Order 37 as it stood then envisaged a decree being passed subsequently.