A. N. SEN, GHOSH ( 1 ) THIS appeal arises out of an order passed by Sabyasachi Mukharji, J. on the 11th of July, 1977. The plaintiff instituted this suit on the 22nd of April 1977 under Order 37 of the Code of Civil Procedure. The claim of the plaintiff in the suit is for recovery of sum of Rs. 5,54,596. 18 in respect of works stated to have been done by the plaintiff pursuant to a contract arrived at by the plaintiff with the defendant by acceptance by the defendant on the 21st April 1975 of the Tender submitted by the plaintiff on the 18th of April 1975 in respect of the work mentioned in the Tender. Running Bills were submitted and certain payment were made in respect of the said running bills. Before the institution of the suit the plaintiff wrote a letter to the defendant on the 3rd March 1976 demanding payment of the said sum of Rs. 5,54,596. 18. A reply was sent to the said letter by the defendant on the 21st April 1976 and in this letter the claim of the plaintiff was denied and disputed on the grounds mentioned in the said letter. The main two grounds mentioned in the said letter are that the rates on the basis of which the bills have been submitted were incorrect and the plaintiff has also stopped carrying on the work and has not completed all the works to be done in terms of the Agreement between the parties. After the institution of the suit under Or. 37 in view of the amendments introduced in the said Order, authorizing and entitling the plaintiff to file the instant suit under the said Order, as the suit of the plaintiff is for the recovery of a fixed sum of money arising out of a written contract between the parties, the plaintiff followed the procedure provided in Order 37 of the amended Code of Civil Procedure by taking out Summons for final judgment as the defendant had duly entered appearance in the suit on the 12th May 1977. ( 2 ) THE plaintiff affirmed an affidavit in support of the Summons taken out by him on the 24th May 1977 and the affidavit was affirmed by the plaintiff Suresh Chandra Das on the same date. ( 2 ) THE plaintiff affirmed an affidavit in support of the Summons taken out by him on the 24th May 1977 and the affidavit was affirmed by the plaintiff Suresh Chandra Das on the same date. In the affidavit filed the plaintiff has stated that the plaintiff verily believes that there is no defence to the claim of the plaintiff in the suit. An affidavit-in-opposition to the said affidavit of the plaintiff was filed on behalf of the defendant and the said affidavit has been affirmed by one Prasanta Kumar Ghose who happens to be the Executive Engineer, South Calcutta Division, Sewers and Drainage Sector of the defendant. In the affidavit-in-opposition filed on behalf of the defendant the claim of the plaintiff has been denied in its entirely and the defendant has further stated that the plaintiff has been trying to take improper advantage of certain typographical mistakes which had occurred in the Tender Form and the claim made by the plaintiff is not tenable and the plaintiff has also ceased to carry on his work and has not completed the entire work in terms of the Agreement between the parties. It may be noted that there was an earlier proceeding in the City Civil Court where a suit had been filed by the plaintiff. It is also to be noted that there was an application for stay of the instant suit under S. 34 of the Arbitration Act. The said application for stay, it appears, has now been finally disposed of and stay has not been granted. ( 3 ) CONSIDERING the various statements made in the affidavit, the learned trial Judge an order on the 11th July 1977 granting leave to the defendant to contest the suit unconditionally. Against the order of the learned Judge granting unconditional leave to the defendant to defend the suit, the plaintiff has preferred this appeal. ( 4 ) A preliminary objection has been raised on behalf the defendant as to the maintainability of the appeal. It has been contended the order under appeal is not appealable under any provision of the Code and the said order cannot also considered to be appealable as judgment within the meaning of Clause 15 of the Letter Patent. ( 5 ) MR. Biswas, learned counsel appearing on behalf of the appellant has submitted that the present appeal is competent. It has been contended the order under appeal is not appealable under any provision of the Code and the said order cannot also considered to be appealable as judgment within the meaning of Clause 15 of the Letter Patent. ( 5 ) MR. Biswas, learned counsel appearing on behalf of the appellant has submitted that the present appeal is competent. He contends that the order of the learned trial Judge decides the question that the plaintiff is not entitled to get immediate judgment and by the order of the learned trial Judge the right of the plaintiff to get immediate judgment is affected. It is his contention that if the right of a party to get immediate judgment is affected, the order becomes appeal able as a judgment within the meaning of Clause 15 of the Letters Patent and in support of this contention Mr. Biswas has relied on a decision of a Division Bench of this Court in the case of Koramall Rambullabh v. Mungilal Dalim Chand reported in AIR 1920 Cal. 163. Mr. Biswas placed particular on the following observation of Sanderson, C. J. who delivered the judgment -?under these circumstances, I think the decision of the learned Judge did affect the merits of the question which was before him, viz. , whether the plaintiff was entitled to have an immediate judgment upon the pleadings or whether he should be compelled to go to trial in the ordinary way. The decision, in my opinion, was a judgment within the meaning of the clause and there is a right of appeal. ? ( 6 ) MR. Biswas has contended that the decisions of this Court in the cases of Bonwari Lal Roy v. Sohan Lal Daga, ILR (1955) 1 Cal. 299 and Lal Behari Prosad Chowdhury v. Parasmull Jain and Ors. , 74 Calwn 972, which have laid down that an order refusing to grant leave to defend to a defendant under Order 37 or granting leave to the defendant on terms in such a suit is not a judgment within the meaning of clause 15 of the Letters Patent and no appeal is maintainable against such an order, should not be held to be correct in view of the changes introduced in Order 37 of the Code of Civil Procedure by the amendment. It is Mr. It is Mr. Biswas's contention that the amendments have introduced completely new provisions and under the amended provisions of Order 37 of the Code of Civil Procedure it has now for the plaintiff to make an application for final judgment after the defendant who is now entitled to enter appearance as a matter of right has entered appearance and the defendant does not have to make any application for leave to enter appearance or to defend the suit. Mr. Biswas in this connection has further argued that as a result of the change now introduced in the provisions contained under in Order 37 under the amended Code, the earlier decisions of this Court which were passed on the basis of the provisions contained in Order 37 before the amendment should no longer be held to be good law. It is Mr. Biswas's argument that the present provisions confer on the plaintiff's right to get an immediate judgment and if this right is denied to the plaintiff the plaintiff can prefer an appeal. Mr. Biswas has further contended that the power of the Court to grant leave is recognized in sub-rule (5) of rule 3 of Order 37 which provides: the defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such fact as may be deemed sufficient to entitle him to defend apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just: ( 7 ) IT is Mr. Biswas's argument that if the Court acts improperly in the matter of granting leave the Court will be acting without jurisdiction and an order granting leave to the defendant in a case where there is no defence will really be an order passed by the learned Judge without jurisdiction. He submits that as the order will be without jurisdiction the order will also become appealable. In support of this submission Mr. Biwas has relied on the decisions of the Supreme Court in the case of Official Trustee, West Bengal and Ors. v. Sachindra Nath Chatterjee and Anr. , AIR 1969 SC 822, Mr. He submits that as the order will be without jurisdiction the order will also become appealable. In support of this submission Mr. Biwas has relied on the decisions of the Supreme Court in the case of Official Trustee, West Bengal and Ors. v. Sachindra Nath Chatterjee and Anr. , AIR 1969 SC 822, Mr. Biswas has also argued that if a Court in dealing with an application by the plaintiff under Order 37 for summary judgment of his claim in the suit exercises its discretion improperly, the said order will also be appealable and this Court should interfere with that order and in support of this contention Mr. Biswas has relied on the decision of the Supreme Court in the case of Shanti Kumar R. Canji v. The Home Insurance Co. of New York, AIR 1974 SC 1719 . ( 8 ) IN our opinion, the objection as to the maintainability of the appeal in well-taken and the instant appeal cannot be held to be competent. It is not in dispute that the order under appeal is not appealable under the provisions of the Code. The order of the learned Judge grating leave to the defendant unconditionally to defend the suit filed by the plaintiff under Order 37, in our opinion, cannot be considered to be a judgment within the meaning of clause 15 of the Letters Patent. In the case of Meghjee Mansing v. Kalooram Lachminarain, 30 CWN 706, a Division Bench of this Court considered the question whether an appeal will lie from an order giving leave to the defendant to defend a suit in an application made by the plaintiff for final judgment under Chapter 13a of the Rules (Original Side Rules of this Court ). Sanderson, C. J. in his judgment held: ?the order which the learned Judge made was in the form of dismissal of the application for judgment made by the plaintiff. In effect it was an order giving leave to the defendant to defend the suit, the consequence of which would be that the suit would be tried in the ordinary manner. In my judgment no appeal lies from that order. As I have said on several occasions, when the question, whether an order is appealable or not arises, the Court must have regard to the particular facts of the case and the nature of the order. In my judgment no appeal lies from that order. As I have said on several occasions, when the question, whether an order is appealable or not arises, the Court must have regard to the particular facts of the case and the nature of the order. When the learned Judge gives unconditional leave to defend; as in this case, on a summons under Chap. XIIIA of the Original Side Rules, in my opinion, it is not a judgment within the meaning of cl. 15 of the Letters Patent. ? ( 9 ) IN the case this Court had occasion to consider the decision of the Court in the case of Koramall Rambullobh v. Mungilal Dalim Chand, AIR 1920 Cal. 163 of white dealing with said judgment, Sanderson C. J. who himself had delivered said judgment observed as follows: ?reliance was placed by the learned Advocate for the appellant upon a decision of this Court in the case of Koramall Rambullobh v. Mungilal Dalimchand. That is not an authority which covers the facts of this case. ? it may be noticed that the decision in AIR 1929 Cal 163 was in an application for judgment in commission. It has to be noticed that although the effect of granting leave to defend was to deprive the plaintiff of his right to get a final judgment or an immediate judgment in the Chapter XIIIA application, the Court in Meghjee Mansing's case held that such an order which in reality had the effect of depriving the plaintiff of getting an immediate judgment, was not a judgment within the meaning of clause 15 of the Letters Patent and was not appealable. ( 10 ) IN the case of Gourlal Mitra v. Sm. Hara Sundari Paul, AIR 1974 Cal. 331 a Division Bench of this Court while considering the meaning of the term 'judgment' observed as follows: ?the term 'judgment' appearing in Cl. 15 of the Letters Patent has been considered time and again by different Courts. It must be noted that the Courts have more often than not come to impute various meanings to the said expression. But the opinion of the Court in regard to the term 'judgment' have oscillated between two extreme opinions expressed in regard to the said expression. One such opinion was expressed in the case of Justices of the Peace for Calcutta v. Oriental Gas Co. But the opinion of the Court in regard to the term 'judgment' have oscillated between two extreme opinions expressed in regard to the said expression. One such opinion was expressed in the case of Justices of the Peace for Calcutta v. Oriental Gas Co. Ltd. , (1872) 17 Suth WR 364 by the Calcutta High Court. The other opinion was expressed by the Madras High Court in its Full Bench decision in Tuljiaram v. Algappa, (1912) ILR 35 Mad. 1. Sir Richard Couch, C. J. observed that judgment in Cl. 15 means a decision which affects the merits of the question between the parties by determining some right or liability, it may be either final or preliminary or interlocutory. . . . . ? ( 11 ) THE Supreme Court in the case of Radheshyam v. Shyam Behari Singh, AIR 1971 SC 2337 expressed the view on the question in the following words: -?for an order to be a 'judgment' it is not always necessary that it should put an end to the controversy in the suit or should terminate the suit. Even the narrower definition of a judgment as given by Couch, C. J. in the Justices of the Peace for Calcutta, (1872) 8 Being L. R. 443-17 Suth WR 364 was that it must mean a decision which affects the merits of the question between the parties by determining some right or liability and such a decision might be either final or preliminary or interlocutory. ? in the case of Shanti Kumar R. Canji v. The Home Insurance Co. of New York, AIR 1974 SC 1719 , the Supreme Court held at p. 1722: ?in finding out whether the order is a judgment within the meaning of clause 15 of the Letters Patent it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. The right or liability is to be found out by the court. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability. ? The right or liability is to be found out by the court. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability. ? ( 12 ) WHEN the Court passed an order granting leave to the defendant to defend a suit under Order 37 all that the Court is required to be satisfied is that there is a triable issue which requires to be considered and that the defence sought to be raised is not frivolous or vexatious. In arriving at the conclusion that an issue arises for trial in the suit, the Court does not decide any question which affects the merits of the action between the parties by determining some right or liability. Such a decision obviously does not also put an end to the controversy in the suit. The merits of the case are in no way affected by an order granting leave to the defendant to defend the suit and no kind of right or liability is determined by such an order passed by the Court. By an examination of an order of this nature whereby leave is granted to the defendant to defend the suit, no kind of right or liability can be found to have (?) decided and the merit of the action remain entirely unaffected. All that the Court considers and is required to consider in an application of this type is whether there is a bona fide defence to the action or the defence sought to be raised in frivolous or vexatious. In other words, all that the Court decides in such an application is whether any triable issue arises for consideration in the suit. It is well-settled that if the Court is satisfied that a triable issue arises for consideration in the suit the Court grants leave. The fact of granting leave by the Court to the defendant to defend does not amount to any kind of adjudication of the defence sought to be taken. The defence taken has, undoubtedly, to be established in the suit. The fact of granting leave by the Court to the defendant to defend does not amount to any kind of adjudication of the defence sought to be taken. The defence taken has, undoubtedly, to be established in the suit. ( 13 ) IN our opinion, it cannot be said that an order granting leave to the defendant to defend, even improperly, becomes an order without jurisdiction Order 37, rule 3 sub-rule (5) confers express jurisdiction on the Court to refuse to grant leave or to grant leave on such conditions as the Court thinks fit and proper in such an application to the defendant. Any improper exercise of the power conferred on the Court cannot make the order without jurisdiction. In a case of his nature even it could be said that the learned trial Judge had exercised his discretion improperly and had passed an improper order, the said order does not become appealable. The a ppealibility will not depend on the question of proper or improper exercise of the discretion conferred on the Court. The decision of the Supreme Court relied on by Mr. Biswas is no authority for the proposition. In the instant case it does not become necessary for us to consider the argument of Mr. Biswas that because of the changes introduced in the provisions contained in Order 37 by the amended Code of Civil Procedure the decisions of the Division Benches of this Court in ILR (1955) 1 C l. 299 and 74 Calwn 972 which also consider other decisions are no longer to be considered as good law. It may be noticed that those were cases where the Court granted leave on terms to the defendant or refused to grant leave to the defendant and those were not cases where leave had in fact been granted to the defendant to contest the suit. The changes introduced in the present Order 37 after the amendment make the provisions somewhat similar to the provisions of Chapter XIIIA of the Rules of this Court. We have earlier noticed that the Division Bench with an appeal preferred from an order granting leave to defend to the defendant in an application made in Chapter XIIIA, that the order was not appealable. ( 14 ) WE are, therefore, of the opinion that the order under appeal is not an appealable order and the present appeal is incompetent. We have earlier noticed that the Division Bench with an appeal preferred from an order granting leave to defend to the defendant in an application made in Chapter XIIIA, that the order was not appealable. ( 14 ) WE are, therefore, of the opinion that the order under appeal is not an appealable order and the present appeal is incompetent. ( 15 ) THE various decisions cited by Mr. Biswas are of no material assistance in the instant case and we do not consider it necessary to deal with the same. ( 16 ) MR. Biswas has also placed before us the material facts of this particular case. As the facts were also placed before us we wish to observe that in our view the learned trial Judge in the instant case was clearly justified in granting leave to the defendant to defend the suit The facts disclosed in the affidavit go to establish that the defence sought to be realized is neither frivolous nor vexatious and triable issues requiring consideration do arise. ( 17 ) IN the result, the appeal fails. The appeal is hereby dismissed with costs. Ghose J. : i agree. Appeal fails.