SANJAY KISHAN KAUL, J. - (1.)(ORAL) The petitioner is impugning the order dated 02.06.2006 in terms whereof the application filed by the petitioner under Order 37(4) of the Code of Civil Procedure, 1908 (herein-after referred to as the said Code) as well as the application filed under Order 37 Rule 3(7) and Rule 4 r/w Section 151 of the said Code had been dismissed. The result is that the decree passed against the petitioners as a consequence of their failure to enter appearance in case of defendants no.1 and 2 and of the failure to file the leave to defend application in case of defendant no.3 is sustained. The decree is really the consequence of the deeming provisions of Order 37 of the Code in terms whereof the allegations made in the plaint are deemed to be admitted to be correct and a decree has to follow.
(2.)The question which has arisen is as to the maintainability of the present petition under Article 227 of the Constitution of India. This aspect is subject matter of earlier adjudication. In fact a conflict of views between the learned Single judges resulted in judgment of the Division Bench of this court in Siri Krishan Bhardwaj v. Manohar Lal Gupta and Another; AIR 1977 Del 226. The Division Bench was of the view that a revision petition was maintainable against such an order since it entailed only bringing of an error to the notice of the High Court and conferred no further right of hearing on the aggrieved party. Irrespective of the fact that the decree would follow, a revision against such an order was held to be competent. The aforesaid judgment has also been followed by the learned Single Judge of this Court in M/s Skylark Motors v. Lakshmi Commercial Bank Limited; AIR 1997 Del 46.
(3.)There is however different view taken by the learned Single Judge of this court in V.S.Saini and Anr v. DCM Ltd; 110 (2004) DLT 641. The judgments in Siri Krishan Bhardwaj v. Manohar Lal Gupta and Another's case (supra) and M/s Skylark Motors's case (supra) were taken note of but it was observed that two further aspects have arisen which persuade the learned judge to take a different view. The first was the judgment of the Supreme Court in Shah Babulal Khimji v. Jayaben D.Kania and Another; AIR 1981 SC 1786 and the second the enforcement of the amendments carried out in Section 115 of the said Code. It was also noticed that M/s Skylark Motors's Case (supra) did not consider the judgment of the Supreme Court in Shah Babulal Khimji's Case (supra). In Shah Babulal Khimji's Case (supra) the suit had been filed on the original side of the Bombay High Court in which interim relief was sought for, which was declined. The appeal was dismissed by the Division Bench as not maintainable. The Supreme Court held that such a judgment was appealable within the meaning of Clause 15 of the Letters Patent.