SUDHIR KUMAR GHOSH Vs. GOBINDA LAL BANERJEE

JUDGEMENT

(1.) This is an application for setting aside a decree passed ex -parte on June 12, 1953. The Petition herein was affirmed on January 31, 1957, and the grounds stated therein are: (a) that before December 26, 1956, when he received a notice to appear before the Master of this Court on January 15, 1957, to show cause why the decree passed against him should not be executed, he did not know anything about the institution of the suit or of the ex- parte decree, (b) that the writ of summons in the suit was never served on him and as a matter of fact he was serving out a term of imprisonment in Pakistan when the decree was passed against him. I have no reason to doubt the genuineness of the statement that the applicant had no knowledge at any time prior to December 26, 1956, that a suit had been filed against him or that a decree had been obtained against him. In Paragraph 2 of the Petition, to quote the Petitioner's own words, it was "on December 26, 1956, when he for the first time came to know about the institution of the suit and of the ex- parte decree."

(2.) The application was not moved before the Court at any time Within 30 days from December 26, 1956, and Mr. Ganguly, Learned Counsel appearing for the Respondent pointed this fact at the first hearing of the application and contended that the application was barred by Article 164 of the Limitation Act. The Learned Advocate appearing on behalf of the Applicant said that in spite of the averments made in Paragraph 2 of the petition it was not till some time afterwards that the Applicant had come to have full details of the decree and therefore the application was made within the period mentioned in Article 164 of the Limitation Act. I gave the Applicant an opportunity of affirming a further affidavit to show exactly when the had knowledge of the decree within the meaning of this Article and by a supplementary affidavit, dated March, 21, 1957, the applicant put on record that "from the enquiries made by lawyers and inspection of the records in the High Court the Applicant came to know on January 4, 1957, that this decree was passed in favour of the Plaintiff herein for the sum of Rs. 3,308-12 with interest and costs as of an Undefended suit." It is claimed that properly speaking the Applicant should be taken to have had knowledge of the decree only on January 4, 1957, and if that date is taken as the terminus a quo for the purpose of limitation the application is not barred. In support of this contention reliance was placed on a judgment of the Bombay High Court in the case of Bapurao Sitaram Karmakar v. Sadbu Bhiva, Gholap,1922 47 ILR(Bom) 485. There the Plaintiff sought to rely on the fact that the Defendant had knowledge of the decree because the Plaintiff had asked two persons to tell him about the decree and to settle the matter. The judgment of Macleod, C.J., shows that these two persons were examined on commission, but His Lordship was not satisfied on the evidence that there was sufficient material before the Court to impute knowledge of the decree on the Defendant within the meaning of Article 164. The observation of the learned Chief Justice on which particular reliance is placed appears at p. 487 of the report reading:

(3.) The ground put forward before me is that the notice which was served on the Applicant in this case did not mention the particular sum for which the decree was passed nor the name of the judge who presided over the Court which passed the decree, and as such his knowledge of the decree on December 26, 1956, was incomplete and the Court should proceed on the basis that he had knowledge of the decree within the meaning of Article 164 of the Limitation Act only on January 4, 1957, after the inspection of documents and searches of the records mentioned.