IBRAHIM Vs. MOOSA

JUDGEMENT

(1.) This Civil Revision Petition arises out of an order refusing to set aside the ex parte decree against the 3rd defendant. The decree in the case was passed on 27.2.1110. In execution of the decree, immovable property was sold and the sale was confirmed on 26.1.1112. The auction purchaser took delivery of the property on 27.2.1112. The 3rd defendant's application to set aside the ex parte decree was made on 2.2.1123. The Trial Court found that summons could not have been properly served on the 3rd defendant but that the application was barred by limitation. There was controversy as to whether the Cochin Limitation Act II of 1079 or the later Act XII of 1112 applied. It was held by the Trial Court that the application was barred in either case and it was accordingly dismissed. On appeal by the 3rd defendant it was held that Act II of 1079 governed the matter, as the same was in force till 24.3.1112 on which date the new Act came into force. In view of this, no opinion was expressed on the question whether the 3rd defendant had knowledge of the decree more than 30 days before the date of the application. The 3rd defendant has preferred the civil revision petition from the concurrent orders against him.

(2.) The main question arising for decision is which as to which of the two Acts should govern the application. Under Art.145 of Act II of 1079, the period of limitation for making the application was 30 days from the date of executing any process for enforcing the judgment. Since the property was sold and taken delivery of more than 30 days before the date of the application, the same has to be held barred by limitation if Act II of 1079 applies. In a similar case Subbarayan Embrandiri v. Narayana Menon (31 C.L.R. 328) the High Court of Cochin held that the right to make an application was barred on the date when new enactment came into force and that a right barred under the old Act could not be revived by the new Act. This was the view followed by the High Court of Travancore also, Sankaran Madhavan Nair v. Kora Kuryala (19 TLJ 383 FB) These decisions followed the dictum in Nepal Chandra Roy Chowdhury v. Niroda Sundari Ghose (ILR 39 Cal. 506). In Mathukumalli Ramayya and others v. Uppalapati Lakshmayya ( AIR 1942 PC 54 ) it was held:-