1993CLC913 (PLP)

SA. Samad Khan for Defendants. Date of 6ing: 24th September, 1989‑ This is application under section 12(2), C.P.C. for setting aside the judgment and decrees passed against defendants Nos. 1, 2, 3, 4, 5 and

6. The defendant Nos, l and 6 had filed application under Order 37, Rule 3, C.P.C. for leave to appear and defend the suit. Defendant No. 'I had filed supporting affidavit and in para 5 it was stated that:‑‑ 'The plaintiff's outstanding dues against the defendant No.1 company are only Rs.9,151,075.42 and not Rs.10,609,931.31 wrongly claimed by the plaintiff in its wrong statement of account." In view of this admission made by the defendants Nos.1, 3 and 6 on 28‑10‑1987 a decree on admission was passed for this amount only and leave to appear and defend the suit was granted in respect of the balance amount of the claim. When the matter came up for hearing on 13‑12‑1987 defendants No. 2, 4 and 5 were absent and as no application for leave to appear and defend had been filed by them a decree in the sum of Rs.91,51,075.42 with interest @ 14% was passed against them also. Subsequently an application under section 152, C.P.C. was made by the plaintiff and by an order which I have announced today decree against defendants Nos.1, 3 and 6 has been amended to include. the relief of Order 34, rule 4, C.P.C. Before this order was passed an application under section 12(2) was filed by defendant No. 1 i.e. M/s. All Asbestos Industries Limited. The learned counsel for the plaintiff has raised objection that this applications on behalf of the defendant No. 1 only. In order to ascertain this fact I have examined the Vakalatnama filed by Mr. S.A Samad Khan Advocate which has been signed by a Director of defendant No. 3 and not on behalf of all other defendants as it does not show that he is an attorney of those defendants. Therefore, I will treat this application on behalf' of defendant No. 1 alone. Mr. SA. Samad the learned counsel has contended that two decrees have been passed each for Rs.91,51,075.42 and thus the total amount of these decrees exceeds the claim in suit. These two decrees were passed separately against defendants No. 1, 3 and 6 on the one hand and defendants Nos. 2, 4 and 5 on the other hand. It does not mean that these decrees will be executed separately and the plaintiff would be entitled to recover the total amount of these two decrees. The decree will be executed jointly and severally to the j extent of the amount mentioned in the decree itself. By passing two decrees I which is permissible in law it cannot be argued that the judgment and decree were without jurisdiction or obtained by fraud. The next contention of the leard counsel for the defendants is that on admission of defendants Nos. 1, 3 and 6 a decree has been passed against all the defendants. This position does not seem to be correct and is not borne out from the record. The first decree against defendants Nos. 1, 3 and 6 was passed on their admission then the other decree against defendants Nos. 2, 4 and 5 was passed as they had not filed application under section 37, Rule 3, C.P.C. for leave to appear and defend the suit, This contention has, therefore, no force: The other contention of the `learned counsel is that the decree on admission is without jurisdiction as no admission was made in writing. This is not correct as in para 5 of the affidavit of Qamruddin Ahmed filed in supper of application under Order 37, R.

3. C.P.C. clear admission has been made as stated above. This objection is not sustainable. The application is dismissed. H.B.T. B‑238/K Application dismissed.