VASU Vs. THANKAMMA

JUDGEMENT

(1.) THE revision petition is against the appellate order,reversing the Trial Court's order and allowing the application by the 4th defendant under R.13 of order IX,C.P.C.The aforesaid defendant had claimed that her summons was fraudulently suppressed,that the compromise decree was obtained by the plaintiff in collusion with the 6th defendant,and that the application for vacating the ex parte proceedings was within limitation.The Trial Court found the summons to be properly served,and the petition to be barred by limitation.The appellate court has believed the 4th defendant's case of the summons being suppressed,and has further found the application to be within limitation,notwithstanding the 4th defendant's written statement in O.S.948/50,in which there was reference to the suit,whose ex parte proceedings the defendant is seeking to vacate.

(2.) IT is common ground that should the reference be found to be made with the defendant's knowledge,her application would be barred by limitation.But the main difficulty,which the revision petitioner faces,is that S.115,C.P.C.confers a limited jurisdiction,and the scope of the inquiry by this court in petitions under the section is very limited.The petitioner's learned advocate has argued that the petition is covered by S.115(a)and(c );but the latter provision cannot be relied;for,the irregularity or illegality must be in the procedure,and not in the main order.That is the observation of Bose J.in Narayanan Sonaji v.Seshrao Vithoba(AIR 1948 Nag.258)which has been approved by the Supreme Court in Keshardeo v.Radhakishen(AIR 1953 SC 23 at p.28 ).Consequently,the petitioner's learned advocate has been forced to argue that because of an erroneous view on limitation error of jurisdiction has been committed;and in support,he relies on Jay Chand v.Kamalaksha(AIR 1949 P.C.239)where their Lordships had held that a wrong decision on limitation,resulting in the exercise of jurisdiction not vested by law,would justify interference under S.115(a ),C.P.C.But 'wrong decision on limitation 'cannot cover erroneous finding on fact;for,then,findings on facts by appellate courts would cease to be binding,and their Lordships of the Privy Council in Joy Chand's case never intended to relax the rule of findings on fact being final in second appeals.Now,the.error by the appellate court in this petition,if any,is of fact;for,the appellate court has held that the 4th defendant had signed the written statement without fully understanding what it contained.It follows that the question arising for decision in this petition,is whether the statement by the defendant of being unaware of what had been alleged in the written statement,is true,and any such adjudication is not covered by S.115(a ),C.P.C.The lower appellate court has jurisdiction to take a view different from the Trial Court,"and the decision is not vitiated by overriding the opinion of the Trial Court,that has had the advantage of observing the demeanour of the witnesses.It follows that the finding of fact about the defendant 's date of knowledge stands;and consistently with this finding,the application is within limitation.Thus there is no legal issue,and consequently the revision petition is dismissed,but without costs.