NARENDRA PAL SINGH Vs. DISTRICT JUDGE ETAWAH

JUDGEMENT

(1.) An application under Order IX. Rule 13 for setting aside ex parte order dated 30.7.1984 was Hied on 11.10.1984 on the ground that no summons were served on the petitioners-defendants. The learned trial court by its order dated 6.8.1986 passed in Case No. 49 of 1984 allowed the said application and set aside the ex parts decree. A revision being Civil Revision No. 96 of 86 was moved. By an order dated 23.10.1986. learned District Judge. Etawah had allowed the said revision. This order is under challenge in the present writ petition.

(2.) Mr. Ajal Kumar Singh, learned counsel for the petitioner submits that the revision order is wholly illegal and the learned Court below has failed to exercise its jurisdiction in that he had allowed the revision and held that the application was filed beyond time and that the defendants had knowledge of the suit and the decree and that too all the defendants had filed vakalatnama on 18.2.1980.

(3.) After hearing learned counsel for the petitioner, it appears that it is not necessary to deal with the question raised by him inasmuch as Article 123 of the Limitation Act provides 30 days time for setting aside a decree to be applied from the date of the decree or from the date of knowledge where a summons or notice was not duly served. The revisional court has not entered into question whether summons were served or not but has proceeded on the basis that two of the defendants had entered appearance through vakalatnama. Shri Singh. however, disputes filing of vakalatnama by the defendants. But tt is not necessary to go into this question. From the revisional order ilself, it appears that the defendant No. 2 was a minor and there was no proper appointment of the guardian for the said minor. On this ground, he has held that the application under Order IX, Rule 13 is liable to be dismissed, a fact that equally applies in respect of ex parte decree as well. Inasmuch as ex parte decree has been passed against the defendant No. 2 who is a minor without any proper appointment of guardian. This is a sufficient ground for setting aside ex parte decree even on the finding of learned District Judge himself. Then again learned District Judge also found that Shiv Ram Singh had died during the pendency of the suit, namely, before the ex parte decree was passed. Nowhere he has come to a finding that the said defendant had been substituted. Thus, there has been an abatement in respect of the heirs of the deceased Shiv Ram Singh. Thus, there appears serious infirmity which should weigh in the matter of decision on the application under Order IX. Rule 13. When it is alleged that no vakalatnama has been filed by the defendants, it was incumbent upon the Court below to decide such question and find out as to whether notices were duly served on the petitioners or not. Without such finding, the application under Order IX, Rule 13 would not be held to be barred by limitation. In order to hold it is barred by limitation, the Court has to decide the question whether summons were duly served or not inasmuch as Article 123 of the Limitation Act provides 30 days time from the date of knowledge in case where summons were not duly served.