H. N. TILHARI, J. ( 1 ) IN the suit filed under order 37, Rule 1 of the CPC, the defendants have moved an application under order 37, Rule 2, seeking leave to defend the suit. The court below has granted that leave, but subject to condition. The first condition is that as far as the admitted amount is concerned, it granted time till 30-8-1994 to defendants to deposit that amount i. e. , Rs. 13,69,356/- in court. As far as the remaining amount of Rs. 8,33,710/- is concerned the court below granted leave to contest and directed the defendant to give security for that amount on or before 30-8-1994. Feeling aggrieved from this order the defendants have come up with this revision petition. ( 2 ) ON behalf of the defendant-revision petitioner, it has been contended that in view of the terms of the agreement between the parties the Delhi courts only have jurisdiction and not the court below or this court. Further, it has been contended by the learned counsel for the petitioner that the court below had no jurisdiction to impose terms and conditions either of depositing the amounts or directing the defendants to furnish security for the portion of the amount. ( 3 ) THESE contentions of the learned counsel for the petitioner have hotly been contested by the learned counsel for the respondent. The learned counsel for the respondent submitted that the defendants have purposely dragging the proceedings and apart from that there has been no agreement as to situs lite at all and if there is any agreement, it is illegal. He further submitted that leave could be granted subject to the condition of depositing the amount admitted, furnishing of the security to remaining amounts. ( 4 ) I have applied my mind to the contentions of the learned counsel for the parties on the question of jurisdiction of the court to entertain the suit based on alleged agreement between the parties which involves mixed question of law and fact even in relation to question relating to the jurisdiction. Such an issue could not be tried as preliminary issue in view of the Provisions of order xiv, Rule 2 (as amended) of CPC, as well as in view of the law laid down by their lordships of the Supreme Court in the case of Major S. S. khanna v Brig. Such an issue could not be tried as preliminary issue in view of the Provisions of order xiv, Rule 2 (as amended) of CPC, as well as in view of the law laid down by their lordships of the Supreme Court in the case of Major S. S. khanna v Brig. F. J. Dillon, wherein their lordships observed as under. "the judge of the court of first instance unfortunately assumed without a trial an affirmative answer to both these questions. Under order 14, Rule 2, Code of Civil Procedure, where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the court the whole suit may be disposed of on the issues of law alone, but the code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the court; not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit". 18. The third question may now be dealt with. By the order passed by the court of first instance on the third issue it was held that the suit filed by dillon was not maintainable. That decision, in our judgment, affected the rights and obligations of the parties directly. It was a decision on an issue relating to the jurisdiction of the court to entertain the suit filed by dillon. In any event, the decision of the court clearly attracted clause (c) of Section 115 of the Code of Civil Procedure, for the court in deciding that "the suit was not maintainable as alleged in paragraphs 15, 16, 17 and 18 of the written statement" purported to decide what in substance was an issue of fact without a trial of the suit on evidence. Dillon alleged in his plaint that at the request of khanna, he had advanced diverse loans (from, the funds lying in deposit in the joint account) and that the latter had agreed to repay the loans. The cause of action for the suit was therefore the loan advanced in consideration of a promise to repay the amount of the loan, and failure to repay the loan. By his written statement khanna had pleaded in paragraph 15 that dillon had not claimed the amount for himself and therefore he was not entitled to file a suit for recovery of the amounts. By paragraph 16 he pleaded the dillon having admitted in the plaint that the amounts in suit were to be paid back to the joint account he was not entitled to file the suit. By paragraph 17, it was pleaded that a suit by one joint owner for recovery of the joint fund or any item of the joint fund was not maintainable and by paragraph 18 he pleaded that dillon could not institute a suit against him because the amount was not repayable. All these contentions raised substantial issues of fact which had to be decided on evidence, and dillon could not be nonsuited on the assumption that the pleas raised were correct. At the threshold of the trial two problems had to be faced : (1) whether in a suit to enforce an agreement to repay an amount advanced in consideration of a promise to repay the same the question as to the ownership of the fund out of which the amount was advanced is material, and (2) if the answer is in the affirmative whether the fund in fact belonged jointly to dillon and khanna. The judge of the court of first instance unfortunately assumed without a trial an affirmative answer to both these questions. Under order 14, Rule 2, Code of Civil Procedure, where issues both of law and of fact arise in the same suit and the court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the "court the whole suit may be disposed of on the issues of law alone, but the code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the court; not to do so, especially when the decision of issues even of law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit". ( 5 ) A part from the aforesaid law laid down by their lordships in the above decision, order 14, Rule 2 of the CPC is also very clear on the aforesaid issues, which reads as follows. "order 14, Rule 2. Court to pronounce judgment on all issues: (1) notwithstanding that a case may be disposed of as a preliminary issue, the court shall, subject to the Provisions of sub-rule (2), pronounce judgment on all issues. (2) where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to. (a) the jurisdiction of the court, or (b) a bar to the suit created by any law for the tune being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue". ( 6 ) AS regards to leave to defend where it should be subject to condition or not or whether the court could direct the defendant to deposit the amount is very clear from order 37, Rule 3 of sub-rule (5), which reads as under. ( 6 ) AS regards to leave to defend where it should be subject to condition or not or whether the court could direct the defendant to deposit the amount is very clear from order 37, Rule 3 of sub-rule (5), which reads as under. " (5) the defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts 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 : provided that leave to defend shall not be refused unless the court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious: provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in court". ( 7 ) A reading of the said provision very clearly reveals that leave may be granted unconditionally or on such terms as appears to be just and appropriate. Further, the second proviso very clearly states that where a part of the amount as claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in court. ( 8 ) IN view of the second proviso to order 37, Rule 3 (5) read along with sub-rules (1) and (2) of the CPC, there appears to be no jurisdic tional error, on the part of the court below into directing the defendant petitioner to deposit the admitted amount or in directing the defendant to furnish the security to the portion of that amount. ( 9 ) IN this view of the matter, in my opinion, the order of the court below does not suffer from any jurisdictional error. Accordingly the civil revision petition is herewith dismissed. --- *** --- .