BACHCHA Vs. KAMESHWAR PRASAD SINGH

JUDGEMENT

(1.) This is a defendant's appeal against the order of the District Judge dated the 24th August, 1957 refusing to rehear the appeal dismissed ex parte on the ground that the decree was passed on 23-2-1957 and the application for setting aside the ex parte decree having been filed on 1-5-1957 it was barred by time under the provisions of Article 169 of the Indian Limitation Act.

(2.) The plaintiff had filed an appeal which was put up for the first time before the District Judge on the 22nd January 1955, An order was passed, 'admit, let notice issue to the defendant-appellant'. In the notice which was issued in the usual form, as given in form No. 6 of the 1st schedule to the C. P. C., the date given was the 13th April 1955. The endorsement thereon was that the defendant-respondent should file the Vakalatnama on the 13th April 1955. The Vakalatnama by the respondent to that appeal was duly filed on 13th April 1955. On that date, however, no date was fixed for the hearing of the appeal and the order passed was that the defendant-respondent had filed his memo and a date will be fixed for fixing a date for hearing. Thereafter, on the 25th October 1956, of which the defendant-respondent had no notice, the court fixed the hearing of the appeal for 1-12-1956 and specifically directed that counsel for the parties be informed of the date so fixed. The date fixed was 1-12-1956. The counsel for the defendant-respondent, however, was not given any information of this date. On 1-12-1956 the appeal was adjoumed for want of time. Of course, the defendant-respondent or his counsel were not present as they had no notice of this hearing. The case was again adjourned to 18-2-1957. The respondent and his counsel not having had any notice of this date either, naturally, were not present. The court recorded that the respondent was not present and heard the appeal ex parte, reserved judgment and fixed the 23rd February 1957 for pronouncing judgment. The defendant-respondent had also no notice of the date fixed for pronouncing the judgment i. e., the 23rd February, 1957. On the latter date an ex parte decree was passed by the District Judge allowing the appeal of the plaintiffs appellant.

(3.) On 1-5-1957, the defendant moved an application for rehearing the appeal decided ex parte under Order XLI Rule 21 C. P. C. This was accompanied by an affidavit of the defendant applicant wherein it was averred that neither he nor his counsel had any knowledge of the date fixed in the case, that it was only one day before that he had learnt in the village that the appeal of the plaintiff, appellant had been allowed ex parte and that the defendant applicant on inspecting the records of the appeal found that an ex parte decree had in fact been passed on 23-2-1957. Thereupon, an application for restoration was filed on 1-5-1957 within 30 days of the knowledge of the decree. A counter-affidavit was also filed stating that the defendants-applicants knew of the date fixed which was 18-2-1957, for the hearing of the appeal but no mention was made of any knowledge by them of the date fixed by the court for pronouncing the judgment. The restoration application, as already observed. was rejected by an order dated 24-8-1956 in these words: