JUDGMENT
M. Srinivasan, C.J.
1. This revision petition is against an order passed by the Sub-Judge First Class, Nalagarh, by which he dismissed the application of the petitioner for grant of leave to defend the suit under the provisions of Order 37 of the Code of Civil Procedure and passed a decree in favour of the respondents for a sum of Rs. 1,05,368 with interest on the principal sum of Rs. 88,000. A preliminary objection is raised by the respondents that the revision petition is not maintainable. It is argued that by virtue of Section 115(2) of the Code of Civil Procedure, when an order is appealable either to the High Court or to any court subordinate thereto, the High Court shall not vary or reverse any decree or order in that application. Reliance is placed on a judgment of the Delhi High Court in Khem Chand v. Hari Singh, AIR 1979 Delhi 7. In that case, while rejecting an application under Order 37 for leave to defend, the court passed a decree in favour of the plaintiff for Rs. 9,495. The said decree was challenged by way of revision. The court held that the decree being appealable, no revision was maintainable under Section 115(2) of the Code of Civil Procedure. The court observed as follows (page 8) :
“It is necessary now to state the difference between the two procedures, i.e., the procedure as it existed before February 1, 1977, and the procedure as now applicable. Firstly, previously only suits on bills of exchange, hundis and promissory notes could be brought under Order 37.
Now, some other suits for liquidated claims of money are also maintainable under Order 37. Secondly, previously, the defendant had to apply for leave to defend within ten days of service, but now he has only to put in appearance. Thirdly, after the defendant puts in appearance, he has to give notice to the plaintiff and then, the plaintiff has to take out a summons for judgment in Form No. 4-A. The period of ten days for filing the application for leave to defend is calculated from the date of service of the summons. Fourthly, the law regarding how the leave to defend has to be given has been varied and fifthly, if part of the claim is admitted, the defendant has to deposit that amount before leave to defend can be granted. These five changes show that the procedure under the new Code is if not essentially different, at least markedly different.”
2. Learned counsel has also placed reliance on a judgment in Shanalal (D.) v. Bank of Maharashtra [1979] Current Civil Cases 175. The question which has arisen before me did not arise in that case. The court had only to consider whether the appeal against the decree passed in a summary suit under Order 37 of the Civil Procedure Code, after the defendant had failed to deposit the conditional security was maintainable. Hence, the ruling has no relevant in this case.
3. My attention is also drawn to a judgment in Lagandeo Singh v. Satyadeo Singh, AIR 1992 Patna 153. There also the present question did not arise. The only question was whether an appeal would lie against the decree passed on consent when the factum of compromise was disputed.
4. Learned counsel for the revision petitioner has drawn my attention to a judgment of the Division Bench of the Delhi High Court in Siri Krishan Bhardwaj v. Manohar Lal Gupta, AIR 1977 Delhi 226. The report does not make it clear whether on the facts, a decree was passed immediately after the refusal to grant leave and before a revision petition could be filed. Moreover, the revision petition itself was filed under the provisions of the old Code as it stood before the amendment of 1976. The case came to be decided by a Division Bench on May 18, 1977, within three months after the amendment came into force. The petition was filed under Article 227 of the Constitution of India. Thereafter, an application was filed to treat the same as one under Section 115 of the Code of Civil Procedure. The court held that it could be converted into a Section 115 petition of the Code of Civil Procedure, on the question of the maintainability of the revision petition, in view of the fact that a decree had been passed in the suit, the court observed that decree which was passed in the suit after refusal to grant leave to the defendant was only consequential and dependent upon the earlier order refusing to grant leave. Hence, the court observed that the revision was maintainable and after the order refusing to grant leave was set aside on revision, it would follow automatically that the decree could also be set aside. In that connection, the court has placed reliance upon the observation of Chief Justice Subba Rao in Rangiah v. Peddireddi AIR 1957 AP 330, which in turn followed the Privy Council in Shama Purshad Roy Chowdery v. Hurro Purshad Roy Chowdery [1865] 10 MIA 203 (PC). The passage from the judgment of the Privy Council is extracted as follows (page 332) :
“It is a well-settled principle of law that certain orders and decrees which are subordinate and dependent upon earlier orders and decrees could only remain in force so long as the order or decree on which they were dependent are not reversed or superseded.”
5. The proposition laid down by the Delhi High Court in Siri Krishan Bhardwaj v. Manohar Lal Gupta, AIR 1977 Delhi 226, may not apply at present in view of the amendment of the Code of Civil Procedure in 1976, which came into effect on February 1, 1977. Even though the Division Bench of the Delhi High Court has extracted Section 115 after the amendment, it had not made any reference to the amended provisions as such, but referred only to the Section as it stood prior to the amendment. It is to be noted that in the later judgment of the Delhi High Court, which I have referred to earlier, namely, Khem Chand v. Hari Singh, AIR 1979 Delhi 7, the judgment of the Division Bench in Siri Krishan Bhardwaj v. Manohar Lal Gupta, AIR 1977 Delhi 226, has not been referred to. Probably, it was because the latter case had arisen after the amendment of the Code of Civil Procedure.
6. Learned counsel for the petitioner has also drawn my attention to a decision of the Punjab and Haryana High Court in Krishanlal Khanna v. Shashi Sen [1996] 2 CCC 98. The court only decided in that case that an order rejecting leave to defend passed by the trial court without considering the objection raised by the defendant in the petition for leave to defend resulted in the failure on the part of the trial court to exercise jurisdiction vesting in it and cannot substantiate failure of justice. The court did not have to consider the question, which has arisen before me in the present case. Hence, the ruling will not apply.
7. It is rightly pointed out by learned counsel for the respondents that after the amendment of the Code of Civil Procedure, the position has changed. Sub-section (2) of Section 115 of the Code of Civil Procedure, clearly shows that the High Court shall not under this Section vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto. The Explanation reads that the expression “any case which has been decided” includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.
In the present case, the order which is challenged in this revision petition is a composite order. While refusing to grant leave to the petitioner herein under the provisions of Order 37 of the Code of Civil Procedure, the court has proceeded to pass a decree also in favour of the plaintiff by the very same order. Hence, there is only one order, which is appealable under the provisions of the Code. Consequently, the revision is not maintainable. The revision petition is, therefore, dismissed. There will be no order as to costs.
8. It is open to the petitioner to file an appeal against the decree before the appropriate court and also raise a contention in that appeal that refusal to grant leave to defend was erroneous.
9. Dasti copy on usual terms.
