DULA GANDA Vs. SENAPATI GANDA

JUDGEMENT

(1.) IN Title Suit No. 34 of 1965 the plaintiffs asked for declaration of title and rectification of the record-of-rights alleged to have been wrongly made in the name of the defendants. An ex parte decree was passed on 6th of May, 1966. The defedants filed an application for restoration of the suit under Order 9, Rule 13, C. P. on 7th of July,1966 alleging that the plaintiffs trespassed upon the land on 28th of June, 1966 after declaraing that they had obtained an ex parte decree. The defendants approached their Advocate who on inspection of records on 6th of July, 1966 came to find that the ex parte decree had been passed on 6th of May, 1966. A miscellaneous case was registered in which Dula Ganda (defendant No. 1) was examined as a witness and two other witnesses were examined who corroborated his testimony that they came to know of the ex parte decree when the plaintiffs trespassed upon the disputed land on 28th of June, 1966. The learned Munsif rejected the application for setting aside the ex parte decree relying on the statement of defendant No. 1 to the following effect :

(2.) UNDER Article 123 of the Limitation Act, 1963 (Act 36 of 1963), to set aside a decree passed ex parte the period of limitation is thirty days from the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree.