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Judgment
S.S. Sodhi, J.—The challenge in revision here is to the order of the trial Court according permission to Defendants Nos. 1, 2 and 4 to defend the suit filed by the Plaintiff under Order 37 of the Code of Civil Procedure.
The Plaintiff, National Fertilizer Limited, filed a suit against the Defendants claiming a sum of rupees one lakh and eighty-two thousands odd in respect of the supply of fertilisers. In their application for leave to defend, Defendants Nos. 1, 2 and 4 admitted their liability to the extent of Rs. 52,000. The trial Court, despite the admission of their liability to this extent, granted to those Defendants leave to defend the suit without imposing any condition whatsoever.
In dealing with this matter, it would be pertinent to advert to the second proviso to Sub-rule (5) of Rule 3 of Order 37 of the CPC which provides that if a part of the amount I claimed by the Plaintiff is admitted by the Defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the Defendant in Court. This provision was clearly applicable to the present case and it was thus incumbent upon the trial Court to have accorded permission to the Defendants to defend the suit subject to the Defendants being called upon to pay to the Plaintiff the amount so admitted to be due from them.
The impugned order of the trial Court is accordingly modified to the extent that Defendants Nos. 1, 2 and 4 shall be permitted to defend the suit subject to their paying to the Plaintiff within two months from today the sum of Rs. 52,000 admitted by them to be due to the Plaintiff.
This revision petition is accordingly hereby accepted with costs. Counsel''s fee Rs. 300.