GRAFITEK INTERNATIONAL Vs. K K KAURA

JUDGEMENT

(1.) This application has been filed in a suit for the recovery of Rs. 12,65,532.40 filed under the Summary Procedure of Order XXXVII of the Code of Civil Procedure. On 30.7.1998 summons and notice of the application were order to issue to the defendants. On 10.11.1998, being satisfied that the defendants 1 and 2 had been duly served, and that defendant No. 3 was deemed to have been served by operation of Order XXXVII, Rule 3 of the Civil Procedure Code, the Court proceeded to pass a decree. This was done taking into regard the provisions of Order XXXVII, Rule 2(3), Civil Procedure Code. Subsequently, execution proceedings were initiated by the plaintiff. The present application under Order XXXVII, Rule 4 is a sequel to these happenings.

(2.) It has been submitted by learned Counsel for the applicants that service had not been properly and legally effected on the defendants. It is also contended that the decree is liable to be set aside as non est and void for the reason that the plaintiff was not a duly registered partnership firm and the special power of attorney authorising the signatory of the plaint could not be taken into consideration since it had .not been notarised. Learned Counsel for the plaintiff had accepted notice of this application and had waived his right to file reply thereto. He had however sought the leave of the Court to file relevant documents. This was granted and he had filed photo copies establishing the fact that the plaintiff is a duly registered firm.

(3.) Mr. I.C. Kumar, the learned Counsel for the applicant, has relied on the following judgments, viz. P.N. Films Ltd. v. Overseas Films Corporation Ltd., AIR 1958 Bombay 10; Ramachandra v. Vithaldas, AIR 1964 Bombay 251; L.R. Raja v. Shah, 1986 Contrast Roger 108; and M.A. Ethirajula Naidu v. T.K.C.K. Panikkar, AIR 1957 Madras 752, in support of his argument that in the circumstances of the case it was only possible to resort to Rule 4 of Order XXXVII and not to Order IX of the Code. On this question there is no controversy. What has to be decided is whether the facts of this case fall within the contemplation of Order XXXVII, Rule 4.