GOPAL PROSAD BHAKAT Vs. SATADALBASINI DEVI

JUDGEMENT

(1.) This Rule arises out of an application under Order 9, Rule 13 of the Code of Civil Procedure, which has been allowed by the court below. The ex parte decree which was sought to be set aside, at the instance of the opposite party has been set aside by the learned Munsif who has directed that the original suit should be restored to file. The case has got a somewhat chequered history. An ex parte decree was obtained by the present Petitioner against the Defendants opposite parties on August 24, 1949, in Rent Suit No. 455 of 1949 of the second court of the Munsif at Sealdah. The decree was put into execution and the property in arrear was auction-purchased by the decree-holder. Thereupon an application was filed by opposite party Munia Kaharin alias Munia Dasi for setting aside the sale. Another application was filed for setting aside the ex parte decree. The sale-set-aside case was first heard by the learned Munsif and the sale was set aside. Thereafter the application for setting aside the ex parte decree was taken up and that application was allowed. The Plaintiff decree-holder came up to High Court under Section 115 of the Code of Civil Procedure challenging the validity and propriety of the order passed by the learned Munsif in connection with the application under Order 9, Rule 13 of the Code of Civil Procedure. The Rule was made absolute by Chunder, J. on July 29, 1954. and a direction was given for rehearing the application in the light of some observations made by the learned Judge. Accordingly, the application was heard again and it was allowed and the ex parte decree was set aside. The Plaintiff decree-holder obtained the present Rule against that order.

(2.) After hearing Mr. Mukherjee on behalf of the Petitioner and Mr. Ganguly on behalf of the opposite party No. 1, I am of opinion that the case has again got to be remanded because it has not been dealt with according to law or according to the directions given by Chunder, J. The only question of importance which was raised in the court below was the question of limitation. Normally an application for setting aside an ex parte decree should be filed within 30 days of the date of passing of the decree; but where the applicant has got no knowledge of the ex parte decree, such an application may be filed within a month of the date of knowledge of the decree. In this case the finding of the learned Munsif was that there was no service of summons. That finding was not challenged before me. There was no finding that the non-service is tainted with fraud. In these circumstances, the onus lay upon the applicant before the trial court to prove when she acquired knowledge of the decree. On this point there is no clear finding of the court below. The record would show that the Plaintiff decree-holder adduced some evidence for the purpose of showing that the applicant before the trial court had got knowledge of the decree at a date much earlier than the date alleged by her. The learned Munsif was not satisfied that this allegation of the Plaintiff decree-holder was proved. It seems that from this fact the learned Munsif came to the conclusion that the applicant before him must have come to know about the decree for the first time on the date alleged by her, namely, on July 9, 1952. It may be mentioned here that the ex parte decree had been passed much earlier, namely, on August 24, 1949. It was for the Petitioner to prove independently on which date she came to know about the ex parte decree. It may be that the evidence adduced on behalf of the Plaintiff decree-holder to prove the date of knowledge is not satisfactory, but the court below acted with material irregularity in the exercise of its jurisdiction in holding that from the failure of the Plaintiff decree-holder to prove the exact date of knowledge of the opposite party of the ex parte decree, it should be held that the date of knowledge alleged by her must be the correct date. Independently of whatever evidence might have been adduced by the Plaintiff decree-holder on this question, the onus lay upon the applicant before the trial court to prove the exact date of her knowledge of the decree. As the question was not approached from this standpoint, I must set aside the order passed by the learned Munsif and remand the case again for proper hearing.

(3.) In the result, this Rule is made absolute and the order complained of is hereby set aside. The learned Munsif will again hear the application under Order 9, Rule 13 of the Code of Civil Procedure upon the evidence already recorded by him and make a finding whether upon the evidence adduced by the applicant in the trial court she has succeeded in showing that she came to know about the ex parte decree for the first time on July 9, 1952. If the learned Munsif holds that this allegation of the applicant before him has been substantiated by evidence, then he will allow-the application and set aside the ex parte decree. If, on the other hand, it is his finding that the evidence adduced by the applicant before the trial court does not justify the above conclusion then he will dismiss the application.