J L BARUA Vs. SANJAY DAS GUPTA

JUDGEMENT

(1.) No representation/appearance has been put in for the Respondent on 14.8.2003 or today.

(2.) It appears that the Plaintiff/Petitioner had filed a suit for recovery of Rs. 51,0007- which was dismissed in default on 5.8.1998. An application for restoration of the suit was also dismissed on 21.1.1999 against which a Petition had been filed under Article 227 of the Constitution, which was disposed of by Orders dated 4.4.2002 permitting the Petitioner to file either an application for restoration of suit or an Appeal. The Plaintiff/Petitioner has elected to file an application for restoration of suit on 17.4.2002 i.e. within a fortnight of the disposal of the petition under Article 227 of the Constitution. The application has been rejected by the Trial Court on the grounds that sufficient cause has not been shown for the delay.

(3.) Reliance has been placed on the decision of this Court in Kailash Devi v. Priti Mandal and Another, 1988(1) HLR 84, wherein it has been held that an application for restoration of an application to set aside an exparte Decree dismissed in default would be three years as it is governed by the residuary provision under Article 137 and not by Article 123 of the Limitation Act, 1963. These provisions read thus : Description of application 123. To set aside a decree passed ex parte or to re-hear an appeal decreed or heard ex parte. Period of limitation Thirty days Time from which period beings to run The date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. Explanation For the purpose of this article, substituted service under Rule 20 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not be deemed to be due service. 137. Any other application for which no period of limitation is provided elsewhere in this division. Three years When the right to apply accrues.