SWATANTER KUMAR, C.J.:- Perplexed due to alleged divergent views expressed by two Division Benches of this Court viz. Bombay Enamel Works Vs. Purshottam, AIR 1975 Bombay 128 and M/s. D. Shanalal Vs. Bank of Maharashtra, AIR 1989 Bombay 150, on the question whether appellants are entitled to challenge the order passed by Court granting conditional leave to defend under Order 37 of the Civil Procedure Code while assailing the final decree passed in summary suit on the ground of non-compliance of conditional order, another Division Bench referred the question to larger Bench. While answering the reference, we do not find any conflict of views in the two Division Bench judgments and find that propriety, legality or correctness of an interlocutory order granting conditional leave or refusing leave to defend the Suit could be challenged by the aggrieved party in an appeal preferred against the final decree provided that the party had not unsuccessfully challenged that order during the pendency of proceedings, prior to passing of the decree or otherwise.

Facts :-

2. The plaintiff who has been carrying on the business under the name and style of M/s. Sagar Synthetics, brought a Summary Suit under the provisions of Order 37 of the Code of Civil Procedure against the defendants. a partnership concern and its partners for recovery of Rs.25,22.626/-. The suit was based on two bills for the textile goods supplied, being bill Nos.17 and 20 dated 4th August, 2001 and 10th August, 2001 respectively. The amount claimed included the price of the goods at Rs. 11.58,892/- and Rs.13,63,734/- being interest at the rate of 30% per annum from the dates of the respective bills till the filing of the suit. The plaintiff also claimed pendente lite and future interest at the same rate. According to the plaintiff, in the suit, he had claimed the said amount from the defendants but despite repeated requests, the amount was not paid and the defendants, thus, were liable to pay the amount as claimed by the plaintiff.

3. On behalf of the defendants- partnership firm, defendant No.3 issued a cheque dated 15th July, 2004 bearing No.869975 for Rs. 11.58,892/- drawn on Bank of Madura Ltd., presently ICICI Bank Ltd., towards the payment of the said amount. However, the cheque was returned unpaid by the bankers with the remarks account closed vide letter dated 15th July, 2004 written to the plaintiff. Faced with these circumstances, the plaintiff filed a suit under the provision of Order 37 of the Code of Civil Procedure against the defendants. The plaintiff took out Summons for Judgment No.669 of 2004 against the defendants. Upon service, the defendants filed affidavit in reply and prayed for grant of unconditional leave to defend the suit and also for dismissal of the Summons for Judgment. The defence taken was that no goods were supplied to the defendants and that no goods were ever received by the defendants. According to them, the alleged bills bore a rubber stamp without any signature of the person who alleged to have received the goods. The cheque book whereof cheque was allegedly issued and relied upon by the plaintiff as evidence, is stated to have been used/consumed between January, 1998 to December, 1999. The plaintiff might have been in possession of the cheque from the year 1999 and is misusing the cheque by putting the date as 15.7.2004, the date on which the defendant No.3 was in judicial remand. From 8.7.2004 to 5.8.2004, defendant No.3 was in Judicial custody and could not have issued a cheque on 15.7.2004. On these facts, the defendants prayed for grant of unconditional leave to defend. Vide order dated 21st September, 2005, the learned Single Judge found that defence taken up by the defendants had no substance. After discussing the defence raised, the court granted conditional leave to defend and recorded following findings:

"However, with a view to give an opportunity to the defendants to defend the suit, I direct the defendants to dep