B KABBAIAH Vs. A GOPALA RAO

JUDGEMENT

(1.) C.R.P. 671/73 is filed against the order in I.A. 122/73. C.R P. 672/73 is filed against I A. 123/73. C.R.P. 673/73 is against I A. 121/73. I.A. 122/73 was filed under Order 9, Rule 13 C.P.C. The 2nd defendant in the suit was the applicant and the petition was ordered after condoning the delay as prayed for in I. A. 121/73 in filing the application to set aside the ex parte decree. I.A. No. 123/73 was filed for amendment of the judgment and decree passed by the lower Court under Section 152 C.P.C. The plaintiff is the petitioner in all these C.R.Ps. The facts necessary for disposal of these revision petitions may briefly be stated.

(2.) The plaintiff filed O.S. 43/72 impleading defendants 1 and 2 seeking recovery of a sum of Rs. 70,390/- inclusive of interest on a principal amount of Rs. 54,000/- Defendants 1 and 2 appeared by the same counsel and filed a written statement jointly. It was inter alia contended that the suit promissory note was executed by the 2nd defendant in the agency area and that the civil court had no jurisdiction to try the suit. It was also urged that the plaintiff was a regular moneylender and that as he did not hold a money-lending licence, the suit was liable to be dismissed. It was also argued that the promissory note was not supported by consideration. On these pleadings appropriate issues were framed and the suit stood posted for trial on 28-3-1973. On that date Sri S.S. Prakash Rao, Advocate appearing for defendants 1 and 2 had filed a memo into court on behalf of the 2nd defendant withdrawing the defence in the suit on behalf of the 2nd defendant. On the same day a memo was filed into court containing a joint endorsement signed by the 1st defendant and his advocate and by the plaintiff and his advocate. The joint endorsement was only filed on behalf of the 1st defendant it did not purport to have been filed on behalf of the 2nd defendant. As stated by me earlier, the defence on behalf of the 2nd defendant was withdrawn by reason of the memo filed by the counsel. The Court on 28-3-1973 recorded the evidence of P.W.1, the plaintiff, and also marked the suit promissory note and certain other documents. Judgment was delivered the next day i.e., 29th. As per the said judgment, the Learned judge noted the fact of P.W.1 being examined and Exs. A-1 to A-8 being marked. It was observed in the judgment as follows:-

(3.) The rest of the judgment went on to state that the plaintiff was entitled to recover a sum of Rs. 40,000/- together with interest thereon at 12% per annum. Defendants 1 and 2 were given liberty to re-pay the decretal amount in five equal annual instalments. The plaintiff was entitled to the institutional costs of the suit.