The main legal point established in the judgment is that the availability of an appeal remedy under the CPC operates as a near total bar to the exercise of jurisdiction by the court under article 227 of the Constitution of India.

JUDGMENT

C. Hari Shankar, J. - This petition, under article 227 of the Constitution of India, assails the decision of the learned additional District Judge ('the learned aDJ') dated 13th December, 2021 in CS DJ 404/2020 (Rakesh Kumar Mittal v. Rajesh Singh).

2. The petitioner was the defendant in the said suit and the respondent was the plaintiff.

3. The respondent filed the aforesaid suit against the petitioner as a summary suit under Order XXXVII of the Code of Civil Procedure, 1908 (the CPC) for recovery of an amount of Rs. 38 lakhs.

4. an application was filed by the petitioner, as the defendant before the learned aDJ, seeking leave to defend the suit.

5. It is not necessary to enter into the details of the impugned order. Suffice it to state that, the learned aDJ has, in paras 16 to 19 of the impugned order, held thus:

'16. There is no denial by the defendant with respect to receipt of Rs.20 lakhs from the plaintiff. His only defence is with respect to the interest part. In view of the aforesaid implied admission by the defendant as well as on the basis of cheques and bank statement relied upon by the plaintiff it stands proved that the defendant has received an amount of Rs.20 lakhs from the plaintiff.

17. The suit of the plaintiff with respect to Rs.20 lakhs is hereby decreed. In so far as claim of the plaintiff with respect to interest is concerned, the defendant is granted conditional leave to defend the same as it is not denied by the defendant that no interest was agreed to be paid by him to the plaintiff.

18. In view of proviso to clause 5 of Rule 3 of Order 37 CPC, the defendant will deposit amount of Rs.20 lakhs within one month from today and once the said amount is deposited he will be permitted to file his written statement.

19. The application of defendant seeking leave to defend the suit is partly allowed and the suit of the plaintiff is partly decreed in the sum of Rs. 20 lakhs to be paid by the defendant within one month from the date of the order. Decree sheet be prepared accordingly.'

6. Clearly, the learned aDJ has partly decreed the suit for an amount of Rs. 20 lakhs and has granted leave to defend in respect of the remainder of the claims in the suit.

7. Mr. Dhingra, learned Counsel for the petitioner, submits that such a course of action could not have been adopted by the learned aDJ, as part decreeing of a suit even while the suit remains pending in respect of the remaining part is alien to the CPC. He also submits that, though the final paragraph of the impugned order refers to the suit having been partly decreed for an amount of Rs. 20 lakhs, the same order refers to the said decision, elsewhere, as an 'order'. He, therefore, submits that the learned aDJ is also not clear as to whether there is a decree for Rs. 20 lakhs or a mere order. If it is an order, he submits that it cannot be treated as a judgment which is appealable under the CPC.

8. Mr. Mittal, the respondent, who appears in person, submits that the impugned judgment is unequivocal in decreeing the respondent's suit partly to the extent of Rs. 20 lakhs. He submits that, in fact, a decree sheet was also drawn up by the court below for the aforesaid amount of Rs. 20 lakhs.

9. Having perused the record and applied myself to the submissions advanced at the Bar, it is clear that the learned aDJ has unequivocally decreed the respondent's suit partly for an amount of Rs. 20 lakhs and has granted leave to defend in respect of the remainder of the claim in the suit.

10. I do not propose to enter into the issue of whether such a course of action could or could not have been adopted, for the simple reason that, applying the recent decision of Hon'ble the Supreme Court in Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v. Tuticorin Educational Society (2019) 9 SCC 538, the present petition under article 227 of the Constitution of India would be barred. Paras 11 to 13 of the report in the said case read thus:

'11. Secondly, the High Court ought to have