BALARAM TRIPATHY Vs. HEMALATA DIBYA

JUDGEMENT

(1.) TITLE Suit No. 48 of 1956 in the Court of the Second Additional Subordinate judge, Cuttack, was decreed on 21-12-61 on compromise between the plaintiff and defendants 1 to 7 and ex parte against defendants 8 to 12. On 17-8-65, defendants 8 to 12 filed an application under Order 9, Rule 13, C. P. C. for setting aside the ex parte decree. The application was allowed and the ex parte decree was set aside on 19-1-67. Against this order setting aside the ex parte decree, the civil Revision has been filed by defendants 2 to 7.

(2.) THE learned Subordinate Judge held that summonses were not served on defendants 8 to 12 and that thev had knowledge of the decree on 4-8-65. On the findings that there was sufficient cause for their absence and the application for restoration was not barred by limitation, the ex parte decree was set aside.

(3.) MR. Dasgupta assails the order of the lower Court on the sole ground that the application for restoration was barred by limitation. According to him, 4-8-65, taken as the date of the knowledge was an error of record. Mr. Dasgupta is correct in saying that 4-8-65 was an error of record. Sunamani Tripathy, defendant No. 9. was examined for the first time on 15-5-65 in an estate abolition case. His deposition is Ext. D. On that day he made the following statement:-