1. ' This application has been made by the applicant to set aside the orders dated the 9th October, 1988, 6th November, 1988 and the 12th February, 1989, passed in Suit No, 746/87 which had been filed by the respondent against the applicant.
2. ' The suit was filed under the provisions of Order 37, Rule 3, C.P.C. And consequently the defendant No,1 have filed an application (C.MA. 4986/87) for leave to appear and defend the suit. Mr. Khalid M.
3. Ishaque appeared for the defendants Nos, 1 to 4 but subsequently made an application (C.M.A.
4. 3857/88). Alongwith the application, he attached copies of two letters which he had addressed to the defendant No,1 and the defendants Nos, 2, 3 and 4 respectively showing that the defendants respectively had endorsed on the letters their no objection to the application by Mr. Khalid M.
5. Ishaque for permission to withdraw from the ,suit. On the 7th August, 1988, notice of C.MA. 3857/88 was ordered to be issued and a notice in pursuance of that order, for hearing of the application on the 18th August, 1988, was issued. Mr. Bangash contends that that notice was served on the defendants Nos, 2, 3 and 4 but was not served on the defendant No,
1. A copy of the notice is at page 105 . Of the record. The application, however, was not fixed for hearing on the 18th of August, 1988, but came up for hearing on the 18th September, 1988, for which admittedly no notice was issued to the defendant No,
1. On that date, the hearing was adjourned but on the subsequent date i,e, the 9th October, 1988, the application was granted and Mr. Khalid M. Ishaque was permitted to withdraw his Vakalatnama. The order is in the following terms:-- "Granted as the defendants Nos, 1 to 4 have given their consent for the withdrawal of the Vakalatnama of Mr. Khalid M. Ishaque filed on their behalf."
6. ' Subsequently the application of the defendant No, 1 (C.M.A. 4986/87) came up for hearing on the 6th November, 1988, and was dismissed as the defendant No, 1 was absent when the case was called for hearing. Thereafter the case came up in Court for hearing of the applications by the remaining defendants for leave to appear and defend the suit when Mr. S. Lqbal Ahmed had requested the Court that in view of the dismissal of the application of the defendant No, 1, the suit may be decreed against it but was ordered that matter would be taken care of alongwith the disposal of other applications. However, on the 12th February, 1989, when the case came up for hearing of the remaining applications as well as for further orders regarding the defendant No, 1, the suit was decreed against the defendant No, 1 and a preliminary decree was ordered to be prepared. Mr. Bangash, the learned counsel for the applicant, submits that the order whereby Mr. Khalid M. Ishaque was permitted to withdraw his Vakalatnama was passed without notice to the defendant No, 1 and is, therefore, bad in law. As to the consent of the defendant No, 1 to Mr. Khalid M.
7. Ishaque's application, I have not understood Mr. Bangash to make any categorical assertion that the writing appearing on the letter addressed by Mr. Khalid M. Ishaque to defendant No, 1 is not that of any one authorised by the defendant No,1. He merely states that the person who signed it should have stated his designation. I see no reasons to believe that Mr. Khalid M. Ishaque would have produced a false document if some one in authority on behalf of the defendant No,1 had not signed it. In any event, if the order allowing Mr. Khalid M. Ishaque to withdraw his Vakalatnama is bad in law, the result would be that Mr. Khalid M. Ishaque would continue to be the counsel of the defendant No,1 and the dismissal of the defendant's application for leave to appear and defend the suit on account of the absence of the defendant as well as his counsel would be justified. On the other hand, if the of the applicant had been that his absence can be explained by the circumstances enunciated above, his remedy was to either apply under Order 39, Rule 4, C.P.C. Or to prefer an appeal against that order. It cannot, however, be said that an order passed without notice to the defendant No,1 is without jurisdcition. Mr. Bangash further contends that, in any event, assuming that Mr. Khalid M. Ishaque ceased to be the counsel of the defendant No,1, the latter was entitled to notice of hearing of his application for leave to defend and since that application was dismissed on a date of hearing of which notice had not been given to the defendant No,1, that order is also bad in law. The argument has no merit because, as stated above, the order may be bad in law but it is not, therefore, without jurisdiction. The Court had the jurisdiction to dismiss the application and it in fact did so in exercise of that jurisdiction. The order dated the 12th February, 1989, is attacked on similar ground. The attack is, therefore, without any merit.
8. ' It is also the case of the applicant that the impugned orders were obtained by fraud. The fraud alleged is that although by order dated the 15th January, 1989, it was ordered that the matter of passing further orders against the defendant No,1 would be taken care of alongwith the disposal of the remaining applications, Mr. Iqbal Ahmed, on the subsequent date of hearing i,e, the 12th February, 1989, again asked for and obtained a preliminary decree against the defendant No,1. The circumstances in which Mr. Iqbal Ahmed requested the Court to pass a decree against the defendant No,1 were on the record and nothing was concealed from the Court. I, therefore, hold that the order of preliminary decree was not obtained by fraud.
9. ' Mr. Iqbal Ahmed points out that this application has been moved only in order to thwart the application made by the respondent for receiver. He further points out that after the preliminary decree was passed, the respondent had applied under Order 34, Rule 5, C.P.C. For final decree and notice of that application was served on the defendant No,1 on the 5th December, 1989, but the defendant did not file any objections; and consequently a final decree was passed on the 13th May, 1990. After the final decree was passed, the respondent herein filed Execution Application No, 110/90 and the applicant filed objections on the 7th February, 1991. The applicant was, thus, aware of the preliminary decree on the 7th February, 1991, A but did not object to it and the grounds on which the execution of the decree was objected to did not include any attack on the preliminary decree passed in the suit. The contention of Mr. Iqbal Ahmed is clearly right and I am persuaded that this application has been filed with the mala fide intention of impeding further progress of the execution proceedings and other remedies which the respondent might pursue. In the circumstances, this application is dismissed. The applicant will pay Rs,2,500 to the respondent on account of the costs of this application.