BACHAN SINGH Vs. DALIP SINGH

JUDGEMENT

(1.) After hearing the learned counsel for the parties, I am of the view that this revision petition deserves to succeed. A suit for specific performance of contract was filed on 10th of November, 1975 and summons in that suit were issued for 15th November, 1975, i.e. giving five days time. On 15th of November, 1975, the trial Judge was on leave and a fresh order was passed on 22nd of November, 1975, for summoning the defendant on 27th December, 1975. On 27th of December, 1975, the trial Judge found that the process issued to the defendant had not been received back, that the case was getting old and therefore the defendant was ordered to be served by publication of notice in 'Daily Ranjeet', Patiala for 6th February, 1976. Thereafter, the suit for specific performance of contract was decreed in the absence of the defendant on 15th of June, 1976. The defendant filed an application for setting aside the ex-parte decree under Order 9 rule 13, Civil Procedure Code, on 17th of January, 1979 in which he stated that he was never served in the suit and that he came to know of the ex-parte decree on 11th of January, 1979 when some revenue officials came to the village to deliver possession of the property from the defendant to the plaintiff, and hence prayed that the application was within time. The application was contested by the plaintiff-decree holder. After the evidence was led by the parties, the trial Court found that the defendant was not served in the suit and on the peculiar facts of the case, substituted service by publication notice in the newspaper was not considered to be due service. On the issue of limitation, the trial Court came to the conclusion that the reports of the revenue authorities dated 14th September, 1978 and 18th of November, 1978 showed that the Judgment-Debtor was present at the spot and he did not allow delivery of possession to the decree-holder and, therefore, from those dates the application for setting aside of the ex-parte decree was beyond limitation. Accordingly, by order dated 21st of July, 1980, dismissed the application as barred by time. This revision petition by the defendant is against the aforesaid order.

(2.) Once it is found that the defendant was not served in the suit, normally such a decree will not be allowed to stand. The application for setting aside the ex-parte decree was not dismissed as time barred. If the decree-holder had brought on record positive evidence to show that the defendant had knowledge of the decree on a particular date and from that date the application was beyond 30 days, then it could be dismissed as time barred. It deserves to be recalled that the decree granted in favour of the plaintiff is dated 15th of June, 1976. Yet, till 17th of January, 1979 when the application for setting aside the ex-parte decree was filed, the decree-holder had not obtained possession of the property. The reports of the revenue authorities, relied upon by the trial Court, that the Judgment-Debtor was present at the site on the two dates, do not bear the thumb-impression or signatures of the Judgment Debtor. Accordingly, I am of the opinion that the reports do not reveal the correct state of affairs. Of course, if the application had been filed 30 days beyond the delivery of possession under the decree to the decree-holder, then certainly the application could be held to be barred by time because on the date of dispossession, the Judgment-Debtor have got the knowledge of the decree.

(3.) As already discussed, there is no reliable evidence on the record to show that the Judgment-Debtor acquired knowledge of the decree more than 30 days before the filing of the application.