The main legal point established in the judgment is that an appeal lies against the Judgment and decree passed under Order 37 of the Civil Procedure Code.

Dipak Misra, J.

1. Invoking the revisional jurisdiction of this Court under section 115 of the Code of Civil Procedure (hereinafter referred to as the 'the C.P.C.') the defendant petitioner has called in question the sustainability of the Judgment and decree passed by the 4th Civil Judge Class-I Jabalpur in C.S. No. 3-B/99 on 27-1-2000.

2. The facts as have been uncurtained are that the non-applicant as plaintiff instituted the aforesaid Civil Suit under Order 37 of the Civil Procedure Code for recovery of an amount of Rs. 40,860/-. The defendant appeared in the case and filed an application for grant of leave which was granted by the Court. After grant of leave the Written Statement was filed by the applicant and the same was received by the Court. The Court framed issues arising out of plaintiff. The Court thereafter fixed the case for recording of evidence in the case. As alleged on 27-1-2000 the Court reviewed the earlier orders and came to hold that the earlier proceedings were bad in law and decreed the suit under Order 37 of the Civil Procedure Code.

3. On a perusal of the impugned order it appears that the Court after narrating the facts has held that the defence taken by the defendants was not acceptable and on the basis of the Hundi the Court directed payment of Rs. 40,860/-. It is pertinent to state here that after delivery of Judgment a decree was also drawn up. It is not disputed before this Court that the Judgment and decree passed by the Court below is under Order 37 of the Civil Procedure Code. It is worth noting here that Mr. A.K. Jain learned Counsel for the petitioner has seriously challenged the procedure adopted by the Court below in proceeding under Order 37 of the Civil Procedure Code. It is his submission that the Court below has not followed the procedure as envisaged in law. Mr. Jain while assailing the Judgment and decree has contended that when the order granting leave was withdrawn and the defences were not taken into consideration the judgment and decree passed by the Court below are vulnerable and in fact they cannot be termed as Judgment and decree under Order 37 of the Civil Procedure Code.

4. Mr. T.C. Naik learned Senior Counsel appearing for the non-applicant has raised a singular contention that the revision is not maintainable as the Judgment and decree passed under Order 37 of the Civil Procedure Code is appealable.

5. To appreciate the rival submissions raised at the Bar it is apposite to reproduce Order 37 Rules 2 and 3 which are relevant for the present purpose. They read as under:-

Order 37- Summary Procedure.-

R. 2. Institution of summary suits.- (1) A suit, to which this Order applies, may, if the plaintiff desires to proceed hereunder, be instituted by presenting a plaint which shall contain,-

(a) specific averment to the effect that the suit is filed under this order;

(b) that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint; and

(c) the following inscription immediately below the number of the suit in the title of the suit, namely:-

(Under Order XXXVII of the Code of Civil Procedure, 1908)

(2) The summons of the suit shall be in Form No. 4 in Appendix B or in such other Form as may, from time to time, be prescribed.

(3) The defendant shall not defend the suit referred to in sub-rule (1) unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of the decree, and such sum for costs as may be determined by the High Court from time to time by rules made in that behalf and such decree may be executed forthwith.

R. 3. Procedure for the appearance of defendant.- (1) In a suit to which this Order applies, the plaintiff shall, together with the summons under Rule 2, serve on the defendant a copy of the