SURAJ BHAN Vs. PHOOL SINGH

JUDGEMENT

(1.) This petition is against the appellate order of the District Judge, Rohtak, whereby the ex parte decree for mandatory injunction directing the demolition of certain construction raised by respondent No. 1 has been set aside, on a prayer made under Order 9 Rule 13 of the Code of Civil Procedure (briefly the Code). Initially the trial Court had declined to accept this prayer of the respondent.

(2.) While recording the above-noted conclusion, the District Judge has recorded a conclusive finding that respondent No. 1 had not been duly served during the course of proceedings which resulted in the passing of the ex parte decree against him and at the relevant time, he was serving as any Army man in the operational area, i.e. Nagaland. The trial Court proceeded ex parte against him on the ground, as per its order dated 6.7.1979, that he had refused to accept service. As per finding of the lower Appellate Court, this report of the Process-server was devoid of any substance. I have no reason to differ with these findings of the lower Court.

(3.) Shri Sarin, learned counsel for the petitioner, however, contends that the application filed by the respondent under Order 9 Rule 13 of the Code was barred by time and thus, the lower appellate Court committed a patent error in setting aside the ex parte decree. The said decree was passed on 6.10.1979 and the present application for setting aside the same was filed on 23.2.1985. This application has been treated to be within limitation, in the light of the provision of Section 10(2) of the Indian Soldiers (Litigation) Act, 1925 which provides that where the summons or notice is not duly served on a soldier in a proceeding, the period of limitation for setting aside any decree or order passed against him shall be 90 days from the date of acquiring knowledge of that decree or order. As per the findings of the lower Court, the respondent acquired this knowledge of the impugned decree on 20.12.1979 when he was served with a notice during the course of proceedings launched for the execution of that decree. The present application having been filed on 23.2.1980, i.e. clearly within 90 days from the date of knowledge of the said decree, i.e. 20.12.1979, the above-noted contention of Shri Sarin has apparently no weight.