Sinha, J. -- 1. Leave granted.

2. This appeal is directed against a judgment and order dated 30.1.2006 passed by a learned Single Judge of the High Court of Delhi whereby and whereunder an application filed under Article 227 of the Constitution of India filed by the respondents herein against a judgment and order dated 27.5.2005 passed by a learned Civil Judge, Karkardooma, Delhi was allowed.

3. The appellant herein filed a suit which was marked as Suit No. 303 of 2004 for recovery of a sum of Rs. 2,93,987/- with interest on account of dishonoured cheques. The said suit was filed in terms of Order 37 of the Code of Civil Procedure (the "Code"). The respondents filed an application purported to be under Order 37 Rule 3 (5) of the Code praying for grant of leave to defend the said suit. The learned Civil Judge refused to do so by an order dated 27.5.2005 opining:

"I am convinced with the plaintiff's contention that the defence as disclosed by the defendant in their application is sham and illusory and in my considered opinion, the defendants are not entitled for leave to defend the present suit and the plaintiff is entitled to have the judgment signed. Accordingly, the application under Order 37 Rule 3 (5) CPC of the defendants is devoid of any merits. The same is hereby dismissed. Application is disposed of accordingly."

4. On the said date itself, a final judgment and decree was passed for a sum of Rs. 2,83,987/- with interest at the rate of 12% thereon holding:

"4. It is contemplated under Order 37 Rule 3 (5) CPC that if any application for leave to defend the suit has been made by the defendant and is refused, the plaintiff shall be entitled to judgment forthwith. Since the application under Order 37 Rule 3 (5) CPC of the defendants has been dismissed as the defendants failed to raise any triable issue or disclose any defence in their application, in my considered opinion, the plaintiff has become entitled to have the judgment signed. Accordingly, suit of the plaintiff is hereby decreed with cost, the plaintiff is entitled for a decree to recover a sum of Rs. 2,83,987/from the defendants. However, since the plaintiff has failed to establish the claim of interest @ 18% per annum which he has claimed is the market rate for commercial transaction, I am inclined to award the interest at the prevailing rate only which is @ 12% per annum on the decretal amount from the date of institution of the present suit till realisation. Decree-sheet be prepared....."

5. An application filed the re-against by the respondents has been allowed by the impugned judgment. The appellant is, thus, before us.

6. The short contention raised by Mr. Jitendra Sharma, learned senior counsel appearing on behalf of the appellant, is that keeping in view of the fact that an appeal was maintainable under section 96 of the Code against the judgment and decree passed by the learned Civil Judge, the application under Article 227 of the Constitution of India was not maintainable.

7. The contention of Mr. V.L. Madan, learned counsel appearing on behalf of the respondents, on the other hand, is that the writ petition was maintainable as the respondents could not have been put to undue hardship of depositing the entire decretal amount in terms of Order 41 Rule 1 of the Code of Civil Procedure although it had made out a good case for obtaining leave to defend the suit.

8. Order 37, Rule 3 (5) of the Code reads thus:

"3. (5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just:

Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate t