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"In a summary suit when leave is not obtained by the defendant or leave is refused to him or where the Defendant fails to comply with a conditional order, the Defendant is precluded from further contesting the plaintiff's claim. By reason of the wordings of O.XXXVII, Rr.2 and 3 there is further disability upon the Defendant. The facts stated in the plaint must be considered to have been admitted by the Defendant and the Plaintiff becomes entitled to judgment. Order XXXVII not only provides for abridgment of the procedure of suits covered by the said provisions but also the said provisions restrict and/or curtail the rights of the Defendants in these suits to contest the Plaintiff's claims. When the matter is carried in Appeal, the Defendant who did not obtain leave or had failed to comply with the conditional order continues to suffer under the same disability. It could never be said that by reason of presenting an Appeal from the Ex parte decree the Defendant would have any greater right to contest the Plaintiff's claim. The appeals preferred from such ex pare decrees passed in summary suits must proceed on the basis that such Defendants had admitted the Plaintiff's case as stated in the plaint and that the Plaintiffs were entitled to judgment. Therefore, although there are undoubtedly similarities between C/SA/397/2017 JUDGMENT an ex parte decree and a decree passed under O.XXXVII, R.3 the analogy cannot be carried too far in view of the basic differences between the two kinds of decrees. Therefore, even in law although an Appeal lies from the ex parte decree passed under O.XXXVII, R.3, the consistent judicial view has been that the finality of a conditional order practically precludes the Defendant Appellant from assailing the decree on merits. In an appeal against an ex parte decree passed in a summary suit for recovery of money payable upon bills of exchange, it would not be open for the appellant -

10. Under the circumstances, the appellants have not complied with the conditional order and therefore they are not entitled to challenge the decree on the ground which they have taken in leave to defend and the appellants are not entitled to raise such question in this forum. Under the circumstances, the order of the Trial Court cannot be interfered in this appeal. The only point which can be raised by the appellants is whether the Trial Court has erred in passing a decree after the appellants had not complied with the conditional order ? That fact is neither pleaded nor argued by the learned advocate for the appellants. Thus, issue no. 1 is not within the scope of this appeal and issue no. 2 is decided in the Negative."

26. So far as the case in hand is concerned, the order passed by the trial Court granting the conditional leave to defend is not C/SA/397/2017 JUDGMENT appealable. This order could have been challenged by the defendants by filing a Special Civil Application before this Court under Article 227 of the Constitution of India. However, the defendants did not deem fit to challenge such order passed by the trial Court granting conditional leave to defend, and at the same time, also failed to comply with such conditional order. This led to passing of the decree, and this decree is appealable under Section 96 of the CPC on the basis of the provisions of Order 43 Rule 1-A(1). This decree, although could be strictly termed as an ex-parte decree passed on account of failure to comply with the conditional order of leave to defend, yet can be challenged in an appeal like any other decree which is appealable. In my view, the first appellate court is not right in taking the view that the grounds raised in the first appeal could not have been looked into on their own merits because of non- compliance of the conditional order of leave to defend.

[18] Both Sanderson, C J., and Buckland, J'., pointed out that an order in those terms not only gave leave to defend on conditions, but also contained the final decree itself which would come to be passed by a mere ministerial process in case the conditions were not complied with by the Defendants. It was on that ground that they distinguished an order made under Chapter XIIIA from an order made under Rule 3 of Order XXXVII. In fact, Buckland, J., said that but for the fact that an order under Chapter XIIIA involved an adjudication on the claim and made the order a final judgment, he did not know that he should have taken the view that he was actually taking.