PANNALAL Vs. MURARILAL

JUDGEMENT

(1.) THIS appeal incidentally raises a question of interpretation of article 164 of the Indian Limitation Act, 1908. The respondent instituted two suits against the appellant in the court of the First Civil Judge, Kanpur. Suit No. 25 of 1958 was for the recovery of moneys due on a mortgage for Rs. 50,000. Suit No. 22 of 1958 was to recover a sum of Rs. 8,000 due on a ruqqa. On May 15, 1958, both the suits were decreed ex -parte. The appellant filed an application to set aside the ex -parte decree passed in Suit No. 22 of 1958. This application was numbered as miscellaneous case No. 104 of 1958. On August 16, 1958, the First Civil Judge, Kanpur, passed an order setting aside this ex -parte decree on certain conditions. The order sheet in O.S. No. 22 of 1958, Misc. Case No. 104 of 1958 on August 16, 1958 stated :

(2.) AN appeal by the appellant from this order was dismissed on September 25, 1958. On February 5, 1959, an advocate employed by the appellant to file a civil revision petition against the appellant order, obtained a certified copy of the order dated August 16, 1958. On February 24, 1959, a civil revision petition was filed by the appellant against the appellate order. On April 16, 1959, the appellant filed an application in the court of the First Civil Judge, Kanpur, under O.9, rule 13, C.P.C., for the setting aside of the ex -parte decree passed in Suit No. 25 of 1958. The Civil Judge dismissed the application. An appeal from this order filed by the appellant was dismissed by the High Court. Both the courts held that the summons in Suit No. 25 of 1958 was not duly served on the appellant but as more than 30 days had expired after the appellant had knowledge of the ex -parte decree, the application was barred by limitation under article 164 of the Indian Limitation Act, 1908. The appellant now appeals to this Court by special leave.

(3.) IN Pundlick Rowji v. Vasantrao Madhavrao, 11 B.L.R. 1296, Davar J., held that the expression "knowledge of the decree" in article 164 means knowledge not of a decree but of the particular decree which is sought to be set aside, a certain and clear perception of the fact that the particular decree had been passed against him. On the facts of that case, Davar, J., held that a notice to the defendant that a decree had been passed against him in the High Court Suit No. 411 of 1909 in favour of one Pundlick Rowji with whom he had no dealings was not sufficient to impute to him clear knowledge of the decree in the absence of any information that the decree had been passed in favour of Pundlick Rowji as the assignee of a promissory note which he had executed in favour of another party. This case was followed by the Calcutta High Court in Kumud Nath Roy Chowdhury v. Jotindra Nath Chowdhury, I.L.R. 38 Cal. 394. In Bapurao Sitaram Karmarkar v. Sadbu Bhiva Gholap, I.L.R. 47 Bom. 485, the Bombay High Court held that the evidence of two persons who had been asked by the plaintiff to tell the defendant about the decree and to settle the matter was not sufficient to impose knowledge of the decree on the defendant within the meaning of article 164. Macleod, C.J. said :