The main legal point established in the judgment is that if a defendant raises a triable issue that could entitle him to succeed in the suit, unconditional leave to defend must be granted.

Horace Owen Compton Beasley, Kt., C.J.

1. This is an application by the defendant in C.S. No. 150 of 1934 for an order staying further proceedings in the suit whether by way of execution or otherwise pending disposal of O.S.A. No. 36 of 1934 which appeal is before us for admission.

2. The following are the facts of the Case. O.S.A. No. 36 of 1934 is an appeal against an order of Mr. Justice Stone which itself was made on an appeal from an order of the Master. It is necessary to go back to the inception of this matter. The respondent here is a woman. She filed a suit on a promissory note against the appellant claiming Rs. 3,150, the face value of the promissory note being Rs. 4,000. She was unable to produce the promissory note and sued for the lesser amount upon the following ground, namely, that the defendant had made a part payment of Rs. 1,000. That accounts for the suit being for a lesser amount than the face value of the promissory note. As regards her inability to produce it with the plaint she stated in her plaint that she had parted with the promissory note under the following circumstances, namely, that when the defendant made the part-payment of Rs. 1,000 he got from her the promissory note in order to take it away with him and endorse thereon the part-payment and that he refused to return it to her or indeed endorse that part-payment upon it. In other words, she alleged that she had parted with the promissory note to the defendant who she stated occupied a position of confidence and trust, upon the fraudulent misrepresentation made by him that he would endorse the part-payment on the promissory note and return it. She accordingly filed her suit under the summary procedure. The defendant put in an application for leave to defend supported by an affidavit in which he denied the plaintiffs case and stated that the amount paid by him was not Rs. 1,000 but Rs. 950 and that payment had been made by him and accepted by the plaintiff in full satisfaction of the promissory note amount by reason of the fact that she together with a number of other creditors of the defendant had agreed to accept payment of four annas in the Rupee which was evidenced by a written composition. The Master was of the opinion that this defence was not bona fide or he had doubts as to the bona fide nature of it and he accordingly only gave conditional leave to defend, the condition being that the defendant should, within one week from the date of the order, pay the full amount claimed in the plaint into Court. The defendant appealed and Mr. Justice Stone upheld the learned Masters order granting only conditional leave to defend but varied the condition altering it to one, that security for the full amount claimed in the suit should be given within fourteen days from the date of his order. It would appear that at that hearing at some stage - we are told by Mr. K.S. Krishnaswami Aiyangar at the stage when it was recognised that a condition was going to be imposed upon the leave to defend - the defendant said that he would give security. That to my mind is not a matter of very much importance or one which should be allowed to influence us at all in the consideration of this question. He was unable to furnish security. Mr. Justice Stones order was made on the 9th May last, i.e., two days before the closing of the Court for the summer vacation, and according to that order, upon failure of the defendant to furnish security within the period fixed, the application for leave to defend would stand dismissed with costs. No security was furnished although leave was given to furnish security to the Vacation Officer and at the expiration of the fourteen days the application stood dismissed. On the 24th July last a decree was passed in favour of the plaintiff for the amount claimed and no appeal has been presented against that decree. The only appeal before us is the appeal against Mr. Justice Stones order granting conditional leave to defend. It was urged