DHAL SINGH KUSHAL SINGH Vs. ANANDRAO KAKDE

JUDGEMENT

(1.) DHAL Singh instituted a suit against Anand Ran Kakde for the recovery of Rs. 3410/-an the Court of the Civil Judge First Class Gwalior (Civil Suit No. 89 of 1956 ). On September 20, 1957 an ex parte decree was passed in favour of the plaintiff. On October 8, 1958 the defendant made an application under Order 9 Rule 13 of the Code of Civil Procedure alleging that the decree was obtained by fraud and without due service of any summons on him and that he camp to know of the decree on October 3, 1958, when in execution of the decree the Nazir came to his house for attachment of his properties. The application for setting aside the decree was resisted by the plaintiff. The defendant filed an affidavit and the plaintiff cross-examined him. In rebuttal the plaintiff produced Babukhan postman, who stated to have taken a registered envelope to the defendant and the defendant refused to accept it, whereupon he returned it with an endorsement to that effect. The learned trial Judge held that substituted service which was alleged to be effected was not due and proper, but he dismissed the application as barred by time. The defendant took an appeal to the District Judge, Gwalior, who allowed it and set aside the ex parte decree. This is plaintiff's revision from that order.

(2.) IT is contended by Shri Dube, learned counsel for the plaintiff, that the application under Order 9, Rule 13, was barred by time inasmuch as it was made beyond 30 days of the date of the decree. The argument is that the defendant must be deemed to have acquired knowledge of the suit when he refused to accept the envelope from the postman and it cannot be said that he was not duly served within the meaning of Article 164 of the Limitation Act and, even if there was any irregularity, it was inconsequential so far as the starting point of limitation is concerned. Counsel relies on the new Rule 20-A of Order 5, C. P. C.

(3.) TWO questions are involved in this case: whether the application for setting aside the ex parte decree was within time and whether any ground for setting aside the decree existed within the meaning of Order 9, Rule 13 C. P. C.