S.K. Mukherjea, J. - (1.) This appeal is directed against an order of a learned interlocutory Judge passed on June 18, 1968, on an application by the defendant in a suit brought under Order XXXVII of the Code of Civil Procedure, for enlargement of time to make the application and for unconditional leave to defend the suit. It appears to be a composite application under Section 5 of the Limitation Act and Rule 3 of Order XXXVII of the Code of Civil Procedure. Summons in the suit was served on the defendant on May 3, 1968. The application was made on June 14, 1968- There is, therefore, no dispute that in so far as it is an application under Order XXXVII, rule 3, it is out of time having regard to Article 118 of the Limitation Act.
(2.) The order made by the learned Judge reads as follows : "It is ordered that upon the said applicant furnishing on or before Monday, the second day of September next, security to the extent of Rs. 10,000/- only to the satisfaction of the Registrar of this Court, the delay in filing this application be condoned and the time for making this application be extended and it is further ordered that in that event the said applicant shall be at liberty to enter appearance in and defend this suit".
(3.) It appears at first sight that the Court has enlarged the time to make the application on term and in the event of the order for enlargement of time taking effect by compliance with the term, the applicant has been granted liberty to enter appearance and defend the suit. It is open to argument that leave to defend the suit has also been granted on term because the defendant will be entitled to enter appearance and defend the suit only if the delay is condoned but the delay is to be condoned only on compliance with the term. The term imposed for enlargement of time, therefore, exercises a remote control on leave to defend. If this argument is pursued a little further it may be legitimately contended that it is not the order enlarging time which has been made on term though formally it appears to be so, but in substance it is the order granting leave to defend the suit which has been made on term. The logic of the situation demands that unless time is enlarged the application cannot be treated as competent and unless the application is treated as competent, no leave can be granted on the application. In that view of the matter, we hold that the term imposed by the learned Judge attaches to leave to defend and not to enlargement of time.;