(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 'ex parte' on 27 -12 -1948, but the application under Order 9, Rule 13, Code of Civil Procedure to set aside the decree was made only on 30 -6 -50. 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 Article 149 of the Travancore Limitation Act (Act 6 of 1100) makes the date of the decree the 'terminus a quo' for an application for an order to set aside the decree passed 'ex parte'. The petition has, therefore, rightly been dismissed by the Courts 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 Article 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 (i) 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 the decree. Be that as it may, both the lower Courts have expressed the view that the provision in note (i) of Article 482 of the Civil Courts' Guide is only directory and not mandatory. This is opposed to the view taken in - 'Ahmed Ummal v. Abdul Khanni Lebba', AIR 1953 Trav -C 126 (A). This decision was, however, not followed by a Division Bench in - 'C.M.A. No. 223 of 1953 (T. C.) (unreported) (B)'. It is on account of this conflict that the revision was referred for decision by a Pull Bench.
(3.) THE decision in - ', AIR 1953 Trav -C 126 (A)' has reviewed practically all the decisions of the Travancore High Court bearing on the point and also referred to the Cochin decisions upon the analogous provision in R. 237 of the Cochin Civil Rules of Practice. The purport of the decision in -', AIR 1953 Trav -C 126 (A)' is that what the rule making authorities in the two States did In enacting these provisions was to prescribe in terms of days what would constitute "sufficient time" within the meaning of Order 9, Rule 6, Code of Civil Procedure to enable a Defendant to appear and answer to the suit on the day fixed in the summons so that the Court may postpone the hearing of the suit to a future date and direct notice of "such posting to be given to the Defendant without waiting in every case to enquire and decide whether the Defendant had sufficient time to enter appearance after the summons was served on him. Note (iii) to Article 482 of the Civil Courts' Guide makes it amply clear that the purpose of the provision in note (i) is what has been explained in the above decision. Note (iii) states: The Bench Clerk should note in the day's cause list whether the time allowed in note (i) ....has elapsed so that the case may not be proceeded with in contravention thereof. When the purpose of the rule is what it has been explained to be in - ', 1952 Ker LT 665 AIR 1953 Trav -C 126 (A) : ' we cannot agree with the view taken in the cases followed in - '; - 'Lekshmi Amma v. Velayudhan', 25 Trav LJ 1217 (C) and - 'Krishna Kurup Govinda Kurup v. Geevarghese Oommen Vydian', 29 Trav LJ 1201 (D) that when there is contravention of the rule, to have the decree set aside, the Defendant must satisfy that after the service of the summons on him there was not sufficient time to enable him to enter appearance in Court and make his answer to the suit. There is no independent discussion of the question in the decision in - 'C. M. A. 223 of 1953 (T. C.) (BV and that decision would seem to have misunderstood the - '1952 KLT' decision to have held that the decree passed in contravention of the Article would be invalid or void. All that the - '1952 KLT' decision says is that the contravention would in itself constitute "sufficient cause" for non -appearance when the suit was called on for hearing.