SWARANAMOYEE DASI Vs. DEBENDRANATH KARAN

JUDGEMENT

(1.) DEFENDANT-JUDGMENT-DEBTOR is the petitioner. The opposite party decree-holder filed T. M. S. 46 of 1954 and obtained a preliminary mortgage decree for sale on 12-11-1955. An application for passing a final decree was filed on 8-1-1960. The. Court passed the final decree in the absence of the petitioner without noticing that the application was barred by limitation. In the final decree proceedings, the Court had directed issue of notice on the petitioner. Though she is a permanent resident of village Sabitrapur in the district of midnapur in West Bengal where she resided with her husband and though this address was given in the proceeding upto the passing of the preliminary decree, with a view to keep her in dark and preventing her from objecting to the application for passing of the final decree, which was barred by time, the opposite party took cut notices giving the address of the petitioner as village Parakhi in the district of Balasore, which is far off from Sabitrapur. The opposite party knew that the petitioner was not living at her father's house at Parakhi, which was in the forcible occupation of one Ramprosad Mandal, an agnate of her father, with whom litigation was going on for the last 7 or 8 years. The opposite party procured false, return of service to the effect that the petitioner refused to accept service. As the petitioner was not served with notice, she was kept from the knowledge of her right to oppose the application for passing of the final decree. On 27-12-1960, the petitioner was served with notice under Order 21, Rule 22, C. P. C. , in the proceeding for execution of the final, decree. She gathered knowledge about the passing of the final decree on the date of service of this notice. On the legal advice of Sri Madhusudhan Das, a senior and experienced member of the Balasore. Bar, the petitioner filed an application on 4-1-1961 under order 9, Rule 13, C. P. C. for setting aside the ex parte final decree. This application was dismissed on. 28-8-1961 in Misc. case No. 1 of 1961. On 10-10-61 the petitioner filed an application, for review of the final decree which was dismissed on. 28-7-1962, The Civil Revision has been filed against the order of dismissing the application for review.

(2.) THE learned Munsif recorded the following findings:

(3.) MR. Mukherji does not dispute tnat the notice of the final decree proceedings was not served in the proper address and that by means of fraud the petitioner was kept from the knowledge of her right to object to the passing of the final decree, and of her right to file an application for review of the final decree, and that the time, limited for making the application for review, shall be computed from 27-12-1960 under Section 18 of the Limitation Act, when the fraud first became known to the petitioner. It is also not disputed that if the period from. 4-1-61 to 28-8-61 is excluded under section 14 (2) of the Limitation Act, the application for review, filed on 10-10-1961 is within time and that there is an error apparent on the face of the final decree which could not have been passed as the application was barred by limitation under Article 181. He, however, contends that Section 14 (2) of the Limitation Act cannot save the aforesaid period and that the petition for review is barred by limitation.