THRATHARU NAMBURIPAD Vs. YOHANNAN

JUDGEMENT

(1.) ADDITIONAL second plaintiff is the revision petitioner. The revision petition is from an order allowing the petition of the 44th defendant to set aside ex parte decree in the case passed against the 18th defendant on 28. 12. 1115. The 18th defendant died on 18. 4. 1118. The 44th defendant was impleaded as his legal representative in execution. He applied on 27. 11. 1121 for setting aside the ex parte decree. The first court found that the summons was fully served on the 18th defendant and dismissed the petition. In appeal from that order the District Court found that the summons was not duly served. It was also held by that court that the application by the 44th defendant was made within 30 days of his knowledge of the decree. According to the revision petitioner the period of 30 days should be calculated from the date of the 18th defendant's knowledge of the decree and not that of his legal representative, the 44th defendant. Art. 164 of the Indian Limitation Act which applies to the case reads: "by a defendant for an order to Thirty days The date of the decree set aside the decree passed ex parte. or where the summons was not duly served, when the applicant has knowledge of the decree". The Article provides that in a case in which the summons was not duly served on the defendant the period of 30 days has to be calculated from the date when the applicant has knowledge of the decree. According to the learned District Judge, the word 'applicant' has to be interpreted as the person who actually makes the application, and in a case in which the application is made by the legal representative of a deceased defendant it is the date when that legal representative has knowledge of the decree and not the date when the original defendant had knowledge of the decree that would be the starting point of limitation. The learned judge has relied on Chitaley's commentaries on the Limitation Act and the case reported in 38 Madras 442.

(2.) THIS is what Chitaley says at page 2532 (3rd Edition, vol. III): "the knowledge of the decree referred to in the article is that of the applicant. If the legal representative of a deceased defendant, against whom an ex-parte decree has been passed wishes to file an application to set it aside on the ground that the summons was not duly served on the defendant, he should do so within thirty days of his (ie. , the applicant's)knowledge of the decree. But if the defendant himself has made such an application and on his death the legal representative continues the application, the date of knowledge of the legal representative is immaterial and it must be shown that the application by the defendant was made within thirty days of defendant's knowledge. " In support of the first proposition the learned author has referred to a ruling of the Oudh Chief Court in 1925 Oudh 370 (Deoki v. Jugal Kishore ). But a reading of the judgment in that case shows that such a view was not taken in that case. One Mt.Deoki, the legal representative of a deceased defendant, applied for setting aside an ex parte decree under O. IX, R. 13 C. P. C. She averred that she came to know of the decree only when she was sought to be impleaded in execution as the legal representative of the deceased defendant. In disposing of the petition the trial court took into consideration two questions, namely, (1) whether the original defendant had notice of the date of hearing of the suit and (2)whether the applicant, legal representative, had come within 30 days of her knowledge of the decree. Both these questions were decided against the applicant and the application was dismissed. In appeal filed from this order the appellant court held that the applicant was not even entitled to file an application under O. IX, R. 13 C. P. C. since she was not actually brought on record as the legal representative of the deceased defendant. THIS view was not accepted by the Chief Court . Dalar, J. C. observed thus: "it has been held by the Madras High Court in ILR 38 madras at page 442 that the legal representative must come within 30 days of her knowledge of the decree under Art. 164 of the Limitation Act. So, if the legal representative waits till proceedings are completed under S. 50 (C. P. C.)his application for rehearing would be time barred. On the other hand, if he hastens to court before the usual dilatory proceedings in court are completed, he is told that he must wait outside. THIS cannot possibly be the law. The provisions of S. 146 (CPC) are very wide. If any proceedings may be taken or application made by or against any person, then the proceedings may be taken or the application may be made by or against any person claiming under him. There is no reason why an application under O. IX, R. 13 should be exempted from this general provision relating to procedure". THIS is the only question that was discussed in the case. The question whether in the case of an application under O. IX R. 13 by the legal representative of a deceased defendant the period of limitation should be computed from the date of the legal representative's knowledge of the decree or from that of the original defendant's knowledge of the decree was not discussed in the case. It is only stated in the judgment that one of the questions considered by the trial court was whether the application was made within 30 days of the applicant's knowledge of the decree. THIS case cannot, therefore, be regarded as an authority for the view expressed by Chitaley.

(3.) WE are of opinion that in this case the material date for the purpose of computing the period of limitation under Art. 164 of the limitation Act (Indian) is the date of the 18th defendant's knowledge of the decree and not that of his legal representative, the 44th defendant. The learned district Judge has not considered the question as to whether the 18th defendant had knowledge of the decree. WE, therefore, set aside the order of the court below and send back the case to that court for fresh disposal according to law and in the light of the observations made above. WE make no order as to costs. Allowed.