Case Note & Summary
The case involved an appeal against a judgment and order passed by a Single Judge of the High Court of Delhi, which allowed an application under Article 227 of the Constitution of India filed by the respondents against a decree for recovery of a sum due to dishonoured cheques. The appellant, Ajay Bansal, had filed a suit for recovery of Rs. 2,93,987/- under Order XXXVII of the Code of Civil Procedure, 1908, which was initially decreed by the Civil Judge after denying the respondents' application for leave to defend. The respondents contended that the writ petition was maintainable to avoid undue hardship of depositing the entire decretal amount. The court analyzed the maintainability of the writ petition in light of the availability of an appeal under Section 96 of the Code. It was determined that the application under Article 227 was not maintainable since an appeal could be filed against the decree. The court ultimately set aside the impugned judgment, allowing the appeal and converting the writ petition into a first appeal, while leaving all contentions open for the appellant to raise. The court directed the respondents to file a certified copy of the judgment and decree and to pay any deficit court fee within eight weeks.
Headnote
A) Civil Procedure - Maintainability of Writ Petition - Application under Article 227 not maintainable when appeal lies - Code of Civil Procedure, 1908, Section 96 - The court held that ordinarily, an application under Article 227 would not be maintainable where an appeal lies under Section 96 of the Code. The court directed that the writ petition be converted into a first appeal, allowing the appellant to raise all contentions (Paras 1-4).
Issue of Consideration
Whether the application under Article 227 of the Constitution of India was maintainable given that an appeal was available under Section 96 of the Code of Civil Procedure, 1908.
Final Decision
The Supreme Court set aside the impugned judgment and allowed the appeal, converting the writ petition into a first appeal. The respondents were directed to file a certified copy of the judgment and decree and pay any deficit court fee within eight weeks.
Law Points
- Maintainability of writ petition
- Leave to defend
- Summary suit
- Article 227
- Code of Civil Procedure
- 1908
