LAWS(KER)-1954-8-4

THOMMAS Vs. TRAVANCORE FORWARD BANK LTD

Decided On August 16, 1954
THOMMAS Appellant
V/S
TRAVANCORE FORWARD BANK LTD. Respondents

JUDGEMENT

(1.) THIS revision is directed against the concurrent orders of two courts below, dismissing the petitioner's application to set aside the ex parte decree against him, in O. S. 105 of 1124 on the file of the meenachil District Munsiff's Court, as barred by time. The said decree was passed exparte on 27. 12. 1948, but the application under O. IX R. 13, C. P. C. to set aside the decree was made only on 30. 6. 1940. The petitioner alleged that he came to have knowledge of the passing of the decree just three days before the presentation of the application. The Courts below have concurrently found that the suit summons has personally been served on the applicant (the defendant ). The date of the knowledge of the passing of the decree had therefore no relevance for the disposal of the application. Where the summons is personally served on the defendant column 3 of Art. 149 of the Travancore Limitation Act (Act VI of 1100) makes the date of the decree the terminus a quo for an application for an order to set aside the decree passed exparte. The petition has therefore rightly been dismissed by the Court below.

(2.) WHEN this revision came up for disposal before one of us, it was referred to a Full Bench for decision in view of a conflict of opinion regarding the true construction of Art. 482 of the Civil Courts' Guide (Travancore ). One of the grounds the petitioner urged to re-open the suit was, that in contravention of note (1) of the said Article the decree was passed before twenty clear days expired after the service of the summons. It is common ground that on 27. 12. 1948 when the decree was passed seventeen days alone had elapsed after the service of the summons on the defendant, the revision petitioner. It is not clear from the two orders before us whether the view that the petitioner's application was barred by time was on the basis that the terminus a quo for it was the date of the decree or the date when the petitioner got knowledge of the passing of the decree. Be that as it may, both the lower courts have expressed the view that the provision in note (1) of Art. 482 of the Civil Courts' Guide is only directory and mandatory. This is opposed to the view taken in Sulaihaummal v. Noohookannu Lebba, 1952 K. L. T. 665. This decision was, however, not followed by a Division Bench in C. M. A. No. 223 of 1953 (unreported ). It is an account of this conflict that the revision was referred for decision by a Full Bench.

(3.) IT has been brought to our notice that the two decisions of the Travancore High Court cited above were followed in a later case not referred to in 1952 K. L. T. 665. That is a decision by a learned single judge and is reported at page 61 of 31 T. L. J. The two Cochin cases, (8 Cochin 317 and 11 Cochin 23) referred to in 1952 K. L. T. 665 were followed in 27 Cochin 626 and there it has been explained that the ground of the decision in the two earlier cases was that when there was a contravention of the rule the defendant should be taken to have been prevented by sufficient cause from appearing when the suit was called on for hearing. Sahasranama Ayyar, J. (as he then was) who delivered the leading judgment in the case observed: "but then the substantial ground of the decision in 8 Cochin and XI Cochin would appear to have been not so much that the service of the summons in those cases was not due services as that the defendant should be taken to have been prevented by sufficient cause from appearing when the suit was called on for hearing. That, in our opinion, is a position which is unassailable, in view of S. 96 (c) (O. IX, R. 6) which enacts that: "if it is proved that the summons was served on the defendant but not in sufficient time to enable him to appear and answer on the day fixed in summons, the Court shall postpone the hearing of the suit to a future day, to be fixed by the Court, and shall direct notice of such day to be given to the defendant". "it will be useful in this connection to turn to S. 104 (O. IX R. 13 ). There are two facts mentioned therein, the existence of either of which entitles the defendant, to have the exparte decree passed against him, set aside. They are (1) that the summons was not duly served and (2) that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. Both these facts are put upon the same footing and the section enacts "that the court shall pass an order to set aside the decree". The lower court's view must, therefore, be upheld, viz. , that the petitioner is entitled to have the exparte decree passed against him, set aside. "