ANANTA MISRA Vs. UTAMA DIBYA

JUDGEMENT

(1.) PLAINTIFF filed the suit on the allegation that the defendant borrowed Rs. 200/from her on the basis of a registered Kentakabala (Ex. 1) dated 3-11-59 on condition that he would redeem the mortgage within two years. Despite repeated demands the money was not paid. On 9-4-63 an ex parte preliminary decree was passed. The decree directed the defendant to pay the decretal dues within three months failing which his right to redeem the mortgaged property would be foreclosed and the plaintiff would be in possession of the property after the decree was made final. During the final decree proceedings, notice was issued to the defendant to show cause why the decree should not be made final. On 15-4-65 defendant appeared and filed an application for setting aside the ex parte decree which was registered as a misc. case. On 22-4-65 further proceedings in the final decree was stayed until disposal" of the misc. case. The misc. case was dismissed on 31-1-66 and against this order a miscellaneous appeal was filed which was dismissed by the learned District Judge. The civil revision has been filed by the defendant against the appellate order. The course of events subsequent to the dismissal of the misc. case may be traced out. Stay of the final decree proceedings had been vacated and the case was put up to 11-2-66 and was adjourned to 16-2-66. It was ordered on that date that advocates of the parties were to be informed and then the case was to be put up. The case was adjourned to various dates. The advocate for the defendant was not informed as would appear from orders dated 21-2-66, 28-2-66 and 15-3-66. Though the advocate for the defendant was not informed, the Court passed an order on 25-3-66 that the defendant was absent on repeated calls. He was set ex parte. Plaintiff's lawyer was heard and the decree was made final. Thus the final decree was passed without notice to the defendant's advocate despite clear direction to the contrary. We are not, however, concerned with this aspect of the matter in this revision. But it is indicated only to show how the directions were not followed bv the learned Munsif doing utter injustice leading to loss of confidence in the judiciary as a whole.

(2.) THE main question for consideration is whether there was sufficient cause for the absence of the defendant and the ex parte decree is liable to be set aside. As has already been stated, the ex parte decree was passed on 9-4-63 and the application for restoration was filed two years after on 16-4-65. Under Article 164 of the Indian Limitation Act (Act IX of 1908), the defendant can apply for setting aside an ex parte decree within thirty days from the date of the decree, or, where the summons was not duly served, within thirty days from the date of his knowledge of the decree. In order to get over limitation, the defendant must establish that summons was not duly served on him and he filed the application on 15-4-65 within thirty days from the date of his knowledge of the decree. According to him, he had knowledge of the decree when he was served with notice in the final decree precedings and within thiry days he filed the application. The only question for consideration, therefore, is whether the summons was not duly served on him. Essentially this is a question of fact and dues not relate to the domain of jurisdiction and is not to be ordinarily interfered with.

(3.) MR. Misra, however, strongly contends that the Courts below exercised their jurisdiction illegally in committing serious errors of record and in ignoring important matters which would have influenced their decisions to take a view in favour of the defendant,