5. Though the appellant disputes that he did not give any consent to the order, contents thereof show that consent would have been given by the appellant/defendant. The bnly way in which an order which records a fact as to what happened in Court can be ch

1. No one was present on behalf of the appellant on the first call. No one is present on behalf of the appellant even on the second call.

2. The challenge by means of this First Appeal is to the impugned order dated 29.8.2009 which while allowing a review application of the appellant/defendant for grant of leave to defend in a suit filed under Order 37 of Code of Civil Procedure, 1908 (CPC) by the respondent/plaintiff for recovery of the money, directed that leave to defend is granted on deposit of 50Yo of the decretal amount in the Court.

3. The facts of the case are that the respondent/plaintiff filed a suit for recovery of Rs.9,27,0001- on the basis of mortgage agreement entered into between the parties. The loan was given on 4.6.2007 and was repayable in six months. Since the loan was not repaid, the subject suit came to be filed. In the leave to defend application, the appellant/defendant took up a stand that he has never executed the mortgage agreement and therefore denied his liability.

4. In my opinion, firstly, the appeal does not lie because the order dated 29.8.2009 appears to be consent order by its terms. The said order FAO No,343/O[9] Page L of 4 2011:DHC:14485 K is reproduced as under:- "29.08.2009 Present: Plaintiff in person. This order will dispose off an application moved on behalf of J.D./defendant for review of order decreeing the suit of plaintiff, dismissing the leave to defend. As agreed by Counsel for the plaintiff & in the interest of justice the order is reviewed and set aside on deposit of 5Oo/o of the decreetal amount in the court within one month from the date of this order. Put on 26.10.2009. (D.K.Malhotra) ADJ/Central-14/Delhi 29.8.2009."

5. Though the appellant disputes that he did not give any consent to the order, contents thereof show that consent would have been given by the appellant/defendant. The bnly way in which an order which records a fact as to what happened in Court can be challenged is by moving of an application before the same Court immediately after the order is passed vide judgment of the Supreme Court in the case of State of Maharashtra Vs. Ramdas Srinivas (L982) 2 SCC 463. Admittedly, the appellant/defendant did not move an application before the same Court and having not done that the matter must end there.

6. At this stage, learned counsel for the respondent very fairly states that the appellant/defendant can be granted leave to defend on his depositing25o/o of the decretal amount as has been directed by this Court FAO No.343/Og 1b while issuing notice on 23.LL.2009. Learned counsel for the respondent/plaintiff also prays for directions for early disposal of the suit which is pending since 2007.

7. ln my opinion, the suggestion of the learned counsel for the respondent/plaintiff is very fair and considering that the appellant has failed to appear to argue the appeal and in fact the appellant/defendant would have been bound by the consent order dated 29.8.2009 lfind that the present is a fit case where it is ordered that the appellant/defendant will be allowed to contest the suit on his depositing 25% of the decretal amount before the trial Court. I may note that the appellant/defendant has failed to deposit any amount in this Court pursuant to the order dated

23. It.200g and possibly this is one of the reasons why the appellant is not appearing in the present appeal. The amount, on being deposited before the trial Court, will be deposited by the trial Court in a fixed deposit so as to earn maximum rate of interest and which deposit shall abide by the final judgment in the suit. g. Nothing contained in the present order will tantamount to any expression on the merits of the case and the trial Court will hear and dispose of the suit in accordance with law uninfluenced by any observations made in present order. Since this is an old matter, the trial Court is requested to dispose of the suit expeditiously and to the extent possible within a period of two years from the first date which is fixed by FAO No.343/O[9] /-l the trial Court. lt is also directed that none of the parties will seek unnecessary adjournments and if the same are sought before the trial Court, the trial Court will impose costs on the party seeking adjournment. Since the appellant/defendant has not been represented today, the trial Court before proceedin_glin the suit, will issue notice to the counsel for the appellant/defendant who is appearing in the trial Court or before this Court.

9. Parties to appear before District & Sessions Judge, Tis Hazari, New Delhi on 20.10.2011 alongwith a copy of this order and the District & Sessions Judge will thereafter mark the suit to a competent Court for disposal in accordance with law,

10. With the aforesaid observations, the appeal and application stand disposed of. \f-w S E PTEM BER Ne L[2],2OLL VALMlKl J. MEHTA, J. FAO No.343/O[9]