DHARAM PAL Vs. GAJJAN SINGH AND OTHERS

JUDGEMENT

(1.) THE applicant was the Defendant against whom a suit for declaration to have an earlier decree in his favour set aside on the ground of fraud and misrepresentation was filed by the Respondents as Plaintiffs. In the suit the applicant was duly served, a fact admitted by him, but he forgot about the suit and the trial Court proceeded exparte against him.

(2.) WHILE the suit was in trial, it was transferred from the first Court, entertain it, to another Court, but on that transfer no information of the transfer of the suit was conveyed to the applicant according to paragraph 6 in Chapter XIII of Volume I of the Rules and Orders of this Court, which enjoins the Court from which a case is transferred to inform the parties of the transfer of the case. An ex -parte decree was made against the applicant on July 31, 1965.

(3.) IN the Limitation Act, 1963 (Act 36 of 1963), Article 123 provides a period of limitation of thirty days to set aside a decree passed ex -parte or to rehear an appeal decreed or heard ex -parte, the starting point of limitation being 'the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree', the explanation to the article not being relevant here. The learned trial Judge following Charanjit Rai Marwaha v. Ghansham Dass -Hanuman Parshad (1954) 7 Punj. 103. came to the conclusion that the case had been transferred to another Court, the applicant as Defendant in the suit was entitled to information of the transfer according to paragraph 6 in Chapter XIII, Volume I of the Rules and orders of this Court and that he was not so informed. However, the learned Judge was further of the opinion that this did not assist the applicant because nothing in Article 123 refers to any such information or the starting point of limitation being from the date of any such information. He very rightly says that the word summons' refers to a suit in which an ex -parte decree is passed, and the word 'notice' to an appeal in which an ex parte decree is made or which is heard ex -parte so far as Article 123 is concerned, and obviously any information which a Court is under a duty to convey according to paragraph 6 in Chapter XIII, Volume I, of the Rules and Orders of this Court is not within the meaning and scope of either the words 'summons' or the word 'notice.' So the learned Judge dismissed the application of the applicant as barred by time.