Honble GUPTA, J.–This second appeal has been filed by the defendant against the judgments and decrees of the learned courts below decreeing the respondents suit filed u/Order 37 C.P.C. passing a decree for a sum of Rs. 6, 000/- along with costs.

(2). The substantial question of law involved in the appeal is as under:-

Whether even without issuing any summons for judgment under Order. 37 Rule 3 C.P.C. the suit can be decreed simply because the defendant had entered appearance in response to summons for appearance issued under Order 37 Rule 2 and under a misconceived notion happened to request the learned trial court to be granted leave to defend and the learned trial court happened to grant leave on the condition of the deposit of the entire suit amount in the court which amount the defendant failed or omitted to deposit?

(3). Brief facts of the case are that on 14.12.93 a suit was filed by the plaintiff respondent alleging inter alia that the plaintiff is a tenant of a premises of the defendant and in the backdrop of that relationship defendant borrowed a sum of Rs. 6,000/- from the plaintiff on 14.1.91 for his domestic purposes with a promise to return them shortly. It is also alleged that looking to the relations no interest was stipulated. It was then alleged that thereafter no payments were made whether for principal or interest and the defendant went to Assam where from he has not returned and since the limitation for suit is expiring the suit is being filed on the basis of promissory note. Interest by way of damages was claimed @ 2% per month. This suit was purportedly filed u/O. 37 C.P.C. On filing the suit, vide order dt. 8.12.93 summons were ordered to be issued. On receipt of summons, the defendant on 7.1.94 entered appearance and requested for being given opportunity to submit defence. Thereafter on 15.7.94 the defendant filed yet another application to the effect that after the defendant entering appearance on 7.1.94, the plaintiff has not taken any proceedings in accordance with O. 37 R. 3 C.P.C., and therefore, the defendant should be allowed to produce written statement and the suit be ordered to be treated to be not one of summary nature. As the record shows that after defendant entering appearance the case was transferred and the learned transferee court on 28.5.94 drew an order sheet to the effect that learned counsel for the defendant wants time to file written statement and to argue the application, therefore the file was ordered to be put up on 15.7.94 for filation of written statement and arguments on the application. Thereafter on 15.7.94, the case was fixed on 22.7.94 for arguments on the application dt. 15.7.94. It was also recorded that the counsel for the plaintiff has filed summons for judgment in summary suit so also affidavit which may be tagged with file. On 22.7.94 again the case was adjourned as the learned Presiding Officer was on leave. Then on 1.8.94 summons were ordered to be issued to the defendant (obviously summons for judgment) and the case was fixed on 6.10.94. On 6.10.94 again the case was adjourned for arguments on the application dt. 15.7.94. Then on 25.10.94 the learned counsel for defendant did not press the application dt. 15.7.94, and therefore, summons u/O. 37 R. 3 C.P.C. were ordered to be issued to the defendant in accordance with law. The fact remains that even thereafter, on 25.11.94, 17.12.94, 22.4.95, 21.4.95, 25.8.95, 2.11.95, 15.12.95, 22.2.96 and 18.5.96 it was noticed that summons u/O. 37 R. 3 C.P.C. have not been issued and they be issued and the case was fixed on 16.7.96. Unfortunately on this date even without issuance of summons for judgment under Order 37 Rule 3 the defendant without mentioning any provision of law and even without mentioning anything about issuance or non-issuance for summons of judgment moved an application praying for being given leave to defend, and therefore, the case was fixed on 16.8.96 for reply and arguments on this application. Therefore t

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