KALI CHARAN ALIAS NANKU Vs. DISTRICT JUDGE MIRZAPUR

JUDGEMENT

(1.) THIS writ petition under Article 226 of the Constitution of India is directed against an order dated 21-2-1981. By the said order, the trial court had allowed an application under Order 9 rule 13 CPC and had set aside the exparte decree. The plaintiff decree-holder filed a revision against the said order and the same was allowed as stated above. The result was that the application under Order 9 rule 13 CPC stood rejected and the exparte decree was allowed to stand,

(2.) THE defendant-judgment-debtor has come up in the instant petition and in support and in opposition I have heard the learned counsel for the parties. THE revisional Court allowed the revision on the ground that the application under Order 9 rule 13 CPC was barred by limitation under Article 123 of the new Limitation Act. THE revisional court felt that the trial court was wrong in thinking that under the said Article when there was no irregularity in the service of process even then the date of knowledge of the exparte decree would be the starting point. It was emphasised that the date of knowledge would be the starting point only where the summons had not been duly served. However, where the summons had been duly served, the starting point would be the date of the exparte decree and not the date of the knowledge of such decree. As the trial court had not taken into consideration the said aspect and as there was no application under section 5 of the Limitation Act for the condonation of delay, the revisional court set aside the order passed by the trial court.

(3.) IN Arjun Singh v. Mohinder Kumar, AIR 1964 SC 993, the Supreme Court emphasised that it is significant that under Order 43 Rule 1 (d) CPC no appeal lies against an order passed under Order 9 Rule 13 CPC allowing a restoration application and setting aside the exparte decree. An appeal is provided where such an application is rejected. It was observed in the said case as follows :- <DJG>"---and it is not without significance that under Order XLIII Rule 1 (d) appeal lies not against orders setting aside a decree passed exparte but against orders rejecting such application unmistakably pointing to the policy of the Code being that subject to securing due diligence on the part of the parties to the suit, the Code as far as possible makes provision for decisions in suits after a hearing afforded to the parties ".</DJG>