COLLECTOR OF BALASORE Vs. ASHUTOSH ROY

JUDGEMENT

(1.) THE Collector of Balasore, exercising the power of the Chairman of the District board, Balasore, is the petitioner in this Civil Revision against an order of the learned Additional Subordinate Judge, Balasore, whereby he set aside an ex parts decree and restored Original Suit No. 51 of 1955 on an application under Order 9, rule 13 Civil Procedure Code in the circumstances hereinafter stated.

(2.) ONE Sri Ashutosh Roy (opposite party herein) was the Chairman of the District board, Balasore. During the time of his office as Chairman he defalcated Rs. 36,000/ -. He was charged, convicted and sentenced by the Magistrate to two years rigorous imprisonment and fine of Rs. 1000/ -. The Sessions Judge in appeal reduced the sentence to three months' rigorous imprisonment and enhanced the fine to Rs. 3,000/ -. On December 9, 1958, the High Court in revision restored the original sentence passed by the Magistrate, namely, two years rigorous imprisonment and a fine of Rs. 1000/ -. 2a. In the meantime in 1935 a suit was filed in the Court of the Subordinate Judge at Balasore on behalf of the District Board, Balasore for realisation of the said sum of Rs. 36,000/- found to have been defalcated as aforesaid. The defendants in the suit were Ashutosh Roy, opposite party herein, and another one Baidyanath Rout. On November 20, 1959 the suit was fixed to be heard. On that date Ashutosh Roy was in Keonjhar Jail. He through a lawyer filed a petition for adjournment on the ground that he could not get ready in the suit as he was in jail. The said petition for adjournment was rejected and Ashutosh Roy, defendant No. 1 in the suit, was asked to get ready. Thereupon his lawyer retired from the suit. The following day, november 21, 1959, an ex parte decree was passed for Rs. 36,000/- against ashutosh Roy, defendant No. 1 in the said suit. Defendant No. 2 Baidyanath Rout, was present and a decree was passed against him for Rs. 1000/ -. In March 1960, while he was still in jail, execution was levied on Ashntosh Roy, the judgment-debtor, in execution of the said decree passed against him. On April 4, 1960, ashutosh Roy was transferred from Keonjhar to Balasore Jail. On December 5, 1960, Ashutosh Roy while in Balasore Jail made an application for setting aside the ex parte decree. Shortly thereafter on January 12, 1961, Ashutosh Roy was released from Balasore Jail. It was on this application that the learned Additional sub-Judge set aside the ex parte decree which had been passed on November 21, 1959, and restored the said Original Suit No. 51 of 1955. Hence this Civil Revision.

(3.) THE point for consideration is whether imprisonment in jail is a sufficient cause for not making the application to set aside the ex parte decree within the period of limitation. Under Article 164 of the Limitation Act, the period of limitation for an application by the defendant for an order to set aside a decree passed ex parte is thirty days from the date of the decree or where the summons was not duly served, when the applicant has knowledge of the decree. In the present case, the decree was passed in the presence of the defendant Ashutosh Roy's lawyer. The defendant Ashutosh Roy admits knowledge of the decree. Therefore, he should have applied under Order 9, Rule 13 within thirty days from the date of knowledge of the decree, that is to say, by December 21, 1959. But it is not until about a year after the expiry of the period of limitation that is December 5, 1960 that ashutosh Roy made the application for setting aside the ex parte decree. The reasoning on which the learned Additional Subordinate Judge set aside the ex parte decree and restored the suit is this :