THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.2183 OF 1999 JUDGMENT:- The defendant in O.S.No.544 of 1995 on the file of the Court of I Additional Senior Civil Judge, Ranga Reddy is the appellant herein. The suit one was filed under Order XXXVII Rule 4 of C.P.C. on the basis of three promissory notes under summary procedure. According to the case of the plaintiff, the defendant has borrowed a sum of Rs.1,57,000/- under three separate pronotes and he did not pay the amount. The defendant has appeared and sought leave to defend and in I.A.No.2094 of 1995 permission was granted to the defendant on condition of depositing the admitted amount of Rs.57,000/- by 16-01- 1997 and also to furnish 3rd party security for the balance amount. However, the said condition has not been complied with and the appellant has preferred C.R.P.No.672 of 1997 and this Court while refusing to interfere with the order of the lower court by its order dated 28-03-1997, extended the time to comply with the conditions imposed by the lower court till 18-04-1997. Since the appellant has not complied with the directions and, therefore, the suit was decreed with costs and interest @ 6% on Rs.1,57,000/- from the date of suit till the date of realisation. Aggrieved by the said judgment, the present appeal is filed. Now the points that arise for consideration are:- 1. Whether the appeal is maintainable? 2. Whether the judgment of the lower court is legal and sustainable? POINTS:- The learned counsel for the appellant contends that the decree passed by the lower court is not proper since no evidence is recorded and no documents are marked and, therefore, it is liable to be set aside. But under the scheme of Order XXXVII CPC the summons will be issued with regard to sum due and also fixing time for appearance and consequently on the failure to obtain leave and defend, the suit will be decreed. In fact, in view of the contest raised by the defendant that the liability is only for a sum of Rs.57,000/- as against the claim of Rs.1,57,000/- and all the three pronotes were filed before the lower court, which were dated 15-10-1992, it cannot be said that decreeing of the suit consequent on the failure to comply with the conditions of the leave to defend can be doubted. As can be seen from the contention of the defendant/appellant, while applying for leave to defend, there are some dealings with the husband of the plaintiff with regard to investment in shares and he paid a sum of Rs.1,00,000/- on 21-05-1995 against the pronotes and a receipt was issued and thereafter even if the claim of the plaintiff is true, the liability is only for a sum of Rs.57,000/-. In fact, that seems to be the defence that was taken in the reply notice. Therefore, the execution of the pronotes is not seriously disputed and partial discharge is pleaded. Probably, that might be the reason as to why at the time of granting of the leave, the court directed to deposit the admitted amount of Rs.57,000/- and give security. The consideration of the above argument of the defendant arises only if it is to be held that the present appeal is maintainable when once the appellant has not complied with the conditions of the leave to defend and has allowed the decree to be passed. In this connection, the learned counsel for the appellant has relied upon a decision reported in Wada Arun Asbestos Private Limited Vs. Gujarat Water Supply and Sewerage([1]). In the above judgment, the Apex Court was considering as to in an appeal against a judgment passed in a summary suit when the leave was granted with some conditions, which was not complied with and it was challenging those conditions, whether the same can be considered in the appeal against the judgment. Incidentally, the court also considered several decisions as to under what circumstances the leave is to be granted and as to whether imposition of conditions is necessary or not. In that judgment, while the appeal was filed the High Court directed deposit of certain amount and that order was complied with and the lapse to comply with the order of the trial court was therefore condoned. The said power was considered and in fact the Apex Court held that an appeal is maintainable even without challenging the order of conditional leave in the revision and the appellate court can pass the orders. In this case also, this court by its order dated 10-09-1999 has directed the appellant herein to deposit the half of the decretal amount and costs within ten(10) weeks but that condition is not complied with and on 09-04-2001 this court has recorded that the conditional order dated 10-09-1999 was not complied. Therefore, in view of the above circumstances, it is quite clear that as in the decision referred to above, this court directed to deposit the amount, but, it was not deposited and had such a deposit been made, then the question of consideration of the merits in the appeal arises. Therefore, in view of the above circumstances, though the appeal can be filed against the judgment but the interference is not called for as the appellant has not complied with the earlier order of the lower court granting conditional leave to defend the suit nor did the appellant comply with the order of this court which is also a conditional leave to defend the suit. Accordingly, there are no merits in the appeal and the appeal is liable to be dismissed. Accordingly, the Appeal Suit is dismissed. No costs. _______________________ N.R.L. NĀGESWARA RĀO,J 01-11-2011 TSNR [1] (2009) 2 S.C.C.432