PUNJAB OIL EXPELLERS COMPANY Vs. MADAN LAL NANDA

JUDGEMENT

(1.) This revision has been presented by the defendant, the Punjab Oil Expeller Company of Ghaziabad, against an order of ths learned Additional District Judge, Delhi, dated 17th August 1962 affirming on appeal an order of a learned Subordinate Judge 1st Class, Delhi, made on 26th March 1962 decling to set aside the ex-parte order dated 13th June 1958 on the ground that there was due service of the defendant and that the application was barred by time under Article 164 of the Indian Limitation Act.

(2.) It would be helpful at this stage to state the relevant facts. The suit out of which these procceedings arise was instituted on 28th March 1958 for the recovery of Rs. 1,537/5/9 and the same was registered on 3rd April, 1958. On the date of registration of the suit, it was ordered that summonses should go for 12th May 1958. No inter- mediate date was fixed. There is a note at the bottom of the older suggesting that in case of refusal service should be effected by affixation. This note is obviously somewhat suspicious. On 12th May 1958, the order shows that the plaintiff's counsel was present and the report was that service had been effected by affixation but the defendant was absent. The case was ordered to be called later. The same day at about 2. 30. P. M. ex-parte procceedings were directed to be taken and the case was adjourned to the following day for the plaintifis' evidence. On the following day, viz, 13th May 1958 after recording the evidence of P. W. I, the Court passed an ex-farte decree for Rs. 1,537/5/9 with costs.

(3.) On 17th November, 1958, an execution application was presented in which notice was ordered to be issued on 20th November, 1958, but the same was dismissed on 10th January, 1959 because no process had been filed and no one appeared at the hearing. It is difficult to understand as to why it was got dismissed in such circumstances and indeed no explanation has been offered at the bar for this proceeding. Second application for execution was presented on 6th March, 1961. In this application, notice was issued to the judgment-debtor and the judgment-debtor applied on 16th May, 1961 for setting aside the ex parte decree. An application was also made on 20th May, 1961 for staying execution proceedings pending the decision of the application for setting aside the ex-parte decree and in the proceeding for setting aside the ex-parte decree, the following three issues on merits were framed:-