SODHI HARNAM SINGH Vs. SODAI MOHINDER SINGH

JUDGEMENT

(1.) This appeal under Clause 10 of the Letters Patent arises out of an application to set aside an 'ex parte' decree passed in favour of Harnam Singh appellant. The facts briefly are that Har-nam Singh brought a suit for the recovery of Rs. 8,500/in the Court of the Senior Subordinate Judge, Ferozepore. The suit was transferred to the Court of Mr. Gambhir, Subordinate Judge and then the appellant Sodhi Harnam Singh applied under Section 24, Civil P. C. for the transfer of the suit to another Court. This application was allowed by the District Judge Who on 18-2- 1950 ordered that the case be transferred to the Court of Subordinate Judge, Fazilka at Muktsar. The 8ubordinate Judge at Fazilka used to visit Muktsar every month. Parties were also directed to appear before the Subordinate Judge, Muktsar on 18-3-1950. On that day the case was taken up by the Subordinate Judge at Muktsar but the defendant did not appear. The case was then heard 'ex parte' and some evidence was taken on 10-4-1950. On the same day an 'ex parte' decree was passed in favour of the plaintiff. On 9-6-1950 an application was made by the defendantjudgment- debtor for setting aside the 'ex parte' decree under Order 9, Rule 13, Civil P. C. This application was dismissed by the trial Judge on the ground that it was barred by time under the provisions of Article 164, Limitation Act. Against that order an appeal was brought to this Court and Kapur J. took the view that the application was not barred by time. He based this decision on the fact that the District Judge on 18-3-1950 had not informed the parties that they were to appear in the Court of the Subordinate Judge, Muktsar on 18-3-1950 and the absence of the defendant was therefore due to his ignorance of the date of hearing at Muktsar. He further look the view that the expression 'summons' used in Article 164 included notices issued to the parties subsequently and that its meaning was not confined to the first summons issued in the case.

(2.) Against this decision of Kapur J. the present appeal has been preferred.

(3.) There are two points for our decision. The first is a question of fact, namely whether the District Judge, while passing orders transferring, the case under Section 24, Civil P. C., informed the parties that they had to appear in the Court of Subordinate Judge at Muktsar on 18-3-1950. The second point is whether the application is barred by time under the provisions of Article 164.