JUDGMENT 1. ON the 28th February, 1966 the respondent instituted a suit against the appellant inter alia for a decree for Rs. 1634. 06 and for the return of 4 cylinders. On the 4th March, 1966 the plaintiff-respondent made an application for appointment of a Receiver. On March 14, 1966 the application for Receiver appeared as a new motion before A. N. Sen, J. His Lordship gave directions for the filing of affidavits. Then, on April 4, 1966 the application appeared in the list of adjourned motions. The defendant-appellant did not file any affidavit-in-opposition nor did they appear at the hearing of the motion. The learned interlocutory Judge passed an ex parte order appointing a Receiver. The defendant-appellant thereafter on 2. ON the 12th May, 1966 the Writ of Summons was served on the defendant-appellant. On the 17th May, 1966 the application of the defendant-appellant made on the 21st April, 1966 was heard. The learned interlocutory Judge was pleased to set aside the order of the 4th April, 1966 and directed that the application of the 4th march, 1966 would be heard on merits. On June 7, 1966 the application dated 4th March, 1966 was heard. The learned Judge passed no order on that application. Three days thereafter, that is, on the 10th June, 1966 the defendant-appellant's time to file the written statement expired. Then, on the 13th june, 1966 the suit was mentioned before A. N. Sen, J. for expeditious hearing and even on that date A. N. Sen, J. directed the defendant-appellant to file its written statement within three weeks. The time given by A. N. Sen, j. expired on the 4th July, 1966. Consequently, on the 6th July, 1966 the suit appeared in the warning list of undefendant suits before Banerjee, J. On the following day, namely, the 7th July, 1966 the defendant-appellant made an application before Banerjee, J, for leave to enter appearance and file written statement. On the 19th July, 1966 Banerjee, J. made an order inter alia that upon the defendant-appellant paying within one week from the date sixty gold mohurs to the plaintiff-respondent the defendant-appellant would be at liberty to file its written statement within one week thereafter. The present appeal is directed against Bnaerjee, J. order of the 19th July, 1966. The first question that arises in this appeal is the question of its maintainability. The present appeal is directed against Bnaerjee, J. order of the 19th July, 1966. The first question that arises in this appeal is the question of its maintainability. In other words, it has to be seen whether the order of banerjee, J. made on the 19th July, 1966 was a 'judgment' within the meaning of clause 15 of the Letters Patent. If it was a judgment the present appeal was maintainable. If it was not a judgment the appeal would have to be dismissed on the preliminary ground that it was not maintainable. 3. NUMEROUS decisions have been cited at the Bar. It is not necessary for us to deal with all the decisions relied on. We are really concerned with a few Division Bench judgments of this Court and I propose to refer to these judgments only. 4. THE first case is the case of muralidhar Chamaria v. Dalmia, reported in ILR 45 Cal. 818. It has been held in this case that no appeal lies from an order made by a Judge (sitting on the Original Side of this Court)refusing an application by a defendant for leave to file his written statement. The order of refusal according to sanderson, C. J. and Woodruff, J. was not a 'judgment' under clause 15 of the letters Patent. The reasoning for this decision should be carefully noted. It was pointed out by the Appellate Court that although leave held been refused to the defendant to file his written statement, it would be still open to the defendant to have recourse to the provisions of Rule 3 of Chapter XIV of the original Side Rules which enables a defendant against whom a suit is heard ex parts to cross-examine witnesses of the plaintiff and to address the Court and also with the leave of the Court to adduce evidence on his own behalf and to have the assistance of a counsel or attorney to represent him at the hearing. Woodroffe, J. observed : "there is yet no final decision on the merits of the case: it is not certain that] there will be a decision adverse to the defendant : for, even if the suit were heard ex parte, it does not follow that; the plaintiff will get a decree. Woodroffe, J. observed : "there is yet no final decision on the merits of the case: it is not certain that] there will be a decision adverse to the defendant : for, even if the suit were heard ex parte, it does not follow that; the plaintiff will get a decree. Next, the Court can give the special leave referred to in Chapter XIV, rule 3, of the Original Side Rules, if the appellant before us appears in Court and asks the Judge to exercise the powers under that rule. " Sanderson, C. J. and Woodroffe, j. emphasised that it was open to the defendant to appeal against the ex parte decree and challenge the interlocutouy order refusing leave to file the written statement in that appeal. 5. THIS judgment in 45 Cal. 818 is binding on us. But there is another division Bench judgment decided recently which is to be referred to in order to appreciate whether there have been any differences of opinion in this court which should induce us to refer this matter to a Fuller Bench. The letter judgment we have in view is the unreported judgment in Appeal from original Order No. 54 of 1964 (Richardson and Cruddas Private Ltd. v. Jessop and Co. Ltd. and Others ). In this case law, J. made a peremptory order on the defendant to file its affidavit of documents. The defendant did not comply with that order. Ultimately mallick, J. made an order for striking out the defence. And an appeal was preferred against the order of Mallick, j. The appeal was heard by Bose, C. J. and G. K. Mitter, J. as he then was. All the authorities upto the time the judgment was delivered on the 7th may, 1964 have been discussed in the judgment of Bose, C. J. The decision in 45 Cal. 818 has also been referred to. In his conclusion regarding the maintainability of the appeal Bose, C. J. observes as follows: " It is clear however from the decision to which reference has already been made that it is not easy to reconcile all the reported decisions on their special facts. 818 has also been referred to. In his conclusion regarding the maintainability of the appeal Bose, C. J. observes as follows: " It is clear however from the decision to which reference has already been made that it is not easy to reconcile all the reported decisions on their special facts. But it appears to me that an order of refusal to restore the defence has the effect of depriving the defendant of his right to contest the suit or the claim, and to establish that the defendant has no liability for the claim or that the claim cannot succeed against him. So if the opportunity of resisting the claim and proving that the defendant has no liability at all is taken away, then the decision has the result of shutting out facilities to the defendant to effectively contest the suit. The question whether as a result of the striking out of the defence the appellant will be entitled to have recourse to Chapter XIV, Rule 3 of the Original side Rules at the hearing of the suit ex parts is one not free from doubt. It has been pointed out in a decision of this Court reported in AIR (1952) Cal 685 by Sarkar, J. that when a defence is struck out under section 14 (4)of the West Bengal Premises Rent control Act, 1950 and the suit is heard ex parte so far as the claim far ejectment is concerned, it is not open to the defendant to have recourse to the provisions of Chapter XIV, Rule 3 of the original Side Rules and thus circumvent the statutory provision which expressly bars the right of defence of a defendant to a claim for ejectment. It is no doubt possible to distinguish this case decided under the special provision of the West Bengal Premises Tenancy Act from an ordinary suit where no such consideration arises and so chapter XIV, Rule 3, of the Original side Rules may be said to be available in such a case. But as I have already said the matter is not reasonably free from difficulty. But as I have already said the matter is not reasonably free from difficulty. In any event, in my opinion, the order appealed against is an order which holds that the peremptory order made by Law, J., on the 27th june 1961 should stand and no extension can be granted and is an order which determines a right between the parties, namely, whether the defendant has a right to contest the suit on its merits or not, and is a judgment within the meaning of clause 15 of the Letters patent. As pointed out already in the case reported in I. L. R. 43 Cal. 857, it was held that an order refusing to set aside dismissal of a suit was appealable and one of the reasonings was that it was implied in such order under Or. 9, r. 8 that under Order 9, Rule 9 of the c. P. C. there was a possibility of an application being made for restoration of the suit so dismissed. Similarly, when the order of Law, J., was made directing the filing of affidavit of documents within a specified period, there was the possibility of an application being made under section 148 of the Code of Civil procedure for extension of time as contemplated in the said section. If the defence is struck out, the defendant cannot have facility of resisting the claim to the extent to which he can do if the defence is restored and the time to file the affidavit of documents is extended. An order striking out a defence is expressly made appealable under clause (f) of Or. 43, R. 1 of the Code. I therefore fail to see why on the analogy of the principle laid down in I. L. R. 43, cal. 857 the order of Mallick, J., is not a 'judgment', inasmuch as it has the effect of giving a finality to the primary older of Law, J., under which the defence stood struck out. I hold that the order appealed against is a 'judgment' within the meaning of clause 15 of the letters Patent and an appeal lies. " 6. UPON going through this judgement our first reaction was that the decision in 45 Cal. I hold that the order appealed against is a 'judgment' within the meaning of clause 15 of the letters Patent and an appeal lies. " 6. UPON going through this judgement our first reaction was that the decision in 45 Cal. 818 and the views of Bose, C. J., (with which G. K. Mitter, j., had concurred) are confecting and in accordance with the Rules of this Court we should refer the matter to a larger bench. But on a close and careful consideration of the judgment of Bose, C. J., it appears to us that (a) the order of mallick, J., striking out the defence was clearly appealable under Or. 43, Rule 1 (f) of the Code of Civil Procedure ; (b) the provisions of section 105 of the code of Civil Procedure which prescribe that "where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal "have not been considered in the judgment of Bose, C. J., (c) the decision of Sarkar, J., on the striking out of the defence under section 14 (4) of the west Bengal Premises Rent Control act, 1950, was a case of statutory dismissal ; and (d) the order of Mallick, j., which Bose, C. J., was dealing with was not a conditional order which we have before us. I have to elaborate what I mean by clause (d) of the above observations. In the present appeal we find that Banerjee, J., had directed that if the defendant-appellant paid sixty gold mehurs to the plaintiff the defendant-apnellant would be at liberty to file its written statement. In other words this was a conditional order in the sense that if sixty gold mohurs were paid the defendant would be free to file its written statement within the extended date. Now, on conditional orders there are two other Division Bench judgments which have to be noted. In Sukhlal ckundermull v. Eastern Bank Limited, 22 CLJ 41, the plaintiff bank sued the defendant under Order XXXVII of the code of Civil Procedure for money due on several bills of exchange. The defendant applied for an order for leave to appear and defend the suit. In Sukhlal ckundermull v. Eastern Bank Limited, 22 CLJ 41, the plaintiff bank sued the defendant under Order XXXVII of the code of Civil Procedure for money due on several bills of exchange. The defendant applied for an order for leave to appear and defend the suit. The learned trial judge granted leave conditional on the defendant furnishing within two weeks security to the extent of the entire claim. The defendant appealed against this order on the ground that leave to defend should have been granted unconditionally. A preliminary question arose as to the competency of the appeal, that is, as to whether the order granting conditional leave to defend was a 'judgment' under clause 15 of the Letters Patent. The appeal Court has held that no appeal lies against an order whereby a single judge on the Original Side of the High court directs the defendant in a suit to give security after granting leave to him to defend the suit. 7. THERE is a similar decision in bonwari Lal Roy v. Sohan Lal Daga, reparted in ILR 1955 (1) Cal. 299. There chakrabartti, C. J. (sitting with sarkar, J.) held that an order under Order XXXVII, Rule 3 of the Code refusing leave to defend or giving leave on terms, is not a 'judgment' within the meaning of clause 15 of the Letters patent and no appeal is maintainable under the clause. At p. 311 the learned Chief Justice has dealt with section 105 of the Code and observed as follows ;- "it is quite true, as pointed out by Page, C. J. in the Rangoon case (A. S. Chettair Firm v. V. T. Veerappa chettair, (1935) ILR 13 Rang. 239) to which I have already referred, that although no appeal may lie from an order refusing leave to defend, the propriety of the order can be canvassed in the appeal from the decree. That right is open to the defendant under section 105 of the Code of Civil Procedure. It seems to me that that may have been the reason why the Code did not provide for appeals from interlocutory orders made under Order xxxvii. The order deals with summary procedure for suits and the end it aims at is certainly abridgment of the proceedings and rapidity of disposal. It seems to me that that may have been the reason why the Code did not provide for appeals from interlocutory orders made under Order xxxvii. The order deals with summary procedure for suits and the end it aims at is certainly abridgment of the proceedings and rapidity of disposal. The Code, to my mind, did not intend to defeat itself by providing appeals from interlocutory orders and did not consider it unjust not to provide for such appeals because all points open to the defendant could be canvassed once and for all in the appeal from the decree that would be passed. The construction which the decisions of this Court have put upon O. XXXVII, r. 3, appears to me to be consonant with the object which O. XXXVII of the Code has clearly in view". 8. FOR all the reasons aforesaid, especially in view of the Division Bench judgments in 22 C. L. J. 41 and 1955 (1)Cal. 299, it seems to us that, it is not necessary to refer this matter to a larger bench on the ground of observations made by Bose, C. J., in Appeal from Original Order No. 54 of 1964 we have referred to. To our mind if an ex parte decree is passed in the suit which the plaintiff-respondent has instituted it would be open to the defendant-appellant to prefer an appeal against the decree and in the grounds of appeal the defendant-appellant may take the point that the conditional order of Banerjee, j., extending the time to file written statement was erroneous for any reason the defendant-appellant may choose to adduce. We are clearly of the view that the order of Banerjee, J., made on the 19th July, 1966 is not a 'judgment' under clause 15 of the Letters Patent and no appeal lies from that order. In the result, this appeal is dismissed. The costs of the appeal would abide by the ultimate result of the suit being suit No. 382 of 1966. 9. MR. In the result, this appeal is dismissed. The costs of the appeal would abide by the ultimate result of the suit being suit No. 382 of 1966. 9. MR. Tebriwal, learned counsel for the defendant-appellant, has submitted to us that there is an interim order for stay of operation of the order of Banerjee, J., made on the 19th July, 1966 and that order of stay should be continued for some time more to enable the defendant-appellant, if so advised, to pay sixty gold mohurs as directed by banerjee, J. We consider the submission of Mr. Tebriwal to be reasonable and we extend the interim stay of operation of the order of Banerjee, J., dated the 19th July, 1966 till the 6th January, 1967. The interim stay of operation of the said order would stand vacated on the expiry of the 6th January, 1967 if within the said date the defendant-appellant fails to pay sixty gold mohurs in terms of Banerjee, J's order. The defendant-appellant would be at liberty to pay sixty gold mohurs on or before the 6th January, 1967 and if such payment is made the defendant-appellant would be at libery to file its written statement on or before the 13th January, 1967.