An appeal lies from a decree passed under Order 37 of the Code of Civil Procedure, as the adjudication of rights finally by the decree is a judgment within the meaning of Clause 15 of the Letters Patent.

( 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 Ganguly

ADV/dp/cal. Br.

U. B. I. 4, Clive Ghat Street ;

Calcutta-1 24-7-1968 .

5 Rs.

Sd /- Hiralal Deb Gupta Sd /- Hiralal Deb Gupta

10 Rs. 24-7-1968

Sd /- Ajit Kumar Ganguly Sd /- Ajit Kumar Ganguly

24-7-1968

( 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 s