2007 (1) TMI 632 - SC - Indian Laws

Summary

Issues involved:
The issues involved in this case are the maintainability of a writ petition under Article 227 of the Constitution of India when an appeal is available under Section 96 of the Code of Civil Procedure, and the consequences of refusing leave to defend a suit under Order XXXVII, Rule 3(5) of the Code.

Issue 1: Maintainability of writ petition under Article 227

The appellant contended that since an appeal was maintainable under Section 96 of the Code against the judgment and decree passed by the Civil Judge, the writ petition under Article 227 was not maintainable. On the other hand, the respondents argued that the writ petition was maintainable to prevent undue hardship in depositing the decretal amount as per Order XLI Rule 1 of the Code.

Issue 2: Consequences of refusing leave to defend under Order XXXVII, Rule 3(5)

The Civil Judge refused the defendants' application for leave to defend the suit under Order XXXVII, Rule 3(5) of the Code, leading to a final judgment and decree in favor of the plaintiff. The judgment highlighted the automatic nature of passing a decree when leave to defend is refused in a summary suit. The judgment also discussed the definition of "decree" and "judgment" under the Code, emphasizing that an order refusing leave is considered a judgment.

The Supreme Court set aside the impugned judgment and directed the writ petition to be converted into a first appeal. The respondents were instructed to file a certified copy of the judgment and decree, and any deficit court fee within eight weeks. The Court allowed all contentions to remain open, including the possibility of the Civil Judge granting leave to defend the suit.

This case clarifies the interplay between the availability of appeals under the Code of Civil Procedure and the jurisdiction of writ petitions under the Constitution of India, particularly in the context of refusing leave to defend a suit under Order XXXVII, Rule 3(5).