HAR KAUR Vs. GURMIT SINGH

JUDGEMENT

(1.) THIS is an application under Order 41. Rule 21. read with Section 151 of the Civil Procedure Code whereby a prayer is made that the ex parte order dated the 22nd March. 1974, in Regular Second Appeal No. 1560 of 1963 be set aside and the appeal be set down for hearing afresh. It may be stated at the outset that when the appeal was called for hearing nobody appeared on behalf of the respondents with the result that it was decided in their absence and was partly allowed.

(2.) NOTICE of this application was issued to the counsel for the opposite party. Mr. K. L. Sachdeva appearing on their behalf has strenuously opposed this application. The only ground on which the application is opposed is that it is time-barred. In order to appreciate the respective contentions of the parties in this respect, reference will have to be made to Articles 164 and 169 of the First Schedule to the Limitation Act. 1908, and Article 123 of the Schedule to the Limitation Act, 1963. For facility of reference the relevant provisions are set down below. "description of Period of Time from which period applicationlimitationbegins to run. By a defendant, for an Thirty The date of the decree 1 order to set aside a daysor, where the summons 6 decree passedwas not duly served, 4 when the applicant. For the re-hearing of an Thirty The date of the decree to 1 ap-peal beard ex parte. daysappeal or, where notice of 6 the appeal was not duly 9 served, when the. applicant has knowledge of the To set aside a decree Thirty The date of the decree or 1 passed ex parte or to dayswhere the summons or 2 3 rehear an appeal decreed or beard ex parte- notice was not duly served, when the. applicant had knowledge of the decree. Explanation. For the purpose of this article, substituted ser-vice ander rule 20 of Order V of the Code of Civil Proce-dure, 1908 shall not be deem. ed to be due service. " The application in this case was filed after more than three months from the date of the decree and would, therefore, be clearly time-barred under Article 123 if the starting point of limitation is the date of the decree. The case of the petitioners, however, is that they learnt about this decision only on the 11th July and then they filed this application on the 15th July, 1974, and as the time was to start running from the date of the knowledge of the decision the application was within limitation.

(3.) THE argument raised on behalf of the respondents is that notice of appeal having been once duly served, the starting point of limitation under Art. 123 would be the date on which the first notice was served. Support for this argument is sought from Sodhi Harnam Singh v. Sodhi Mohinder Singh. 1954-56 Pun LR 50 = (AIR 1954 Punj 137) wherein while interpreting Article 164 of the Limitation Act it was held that the expression "summons" referred to the summons issued in the first instance and not to notices issued to parties subsequently whether such notices were necessary under the law or not. In this case a suit was transferred from the Court of the Subordinate Judge. Ferozepore to that of Subordinate Judge. Muktsar, under Section 24 of the Civil Procedure Code and the parties were directed to appear at Muktsar on the 18th March. 1950. On that date the defendant did not put in appearance and the case was heard ex parte. An application for setting aside the ex parte decree was moved after more than thirty days of the date of the decree and was dismissed on the ground that it was time-barred. In appeal a Single Judge of this Court came to the conclusion that the expression "summons" did not only include notices issued to the parties subsequently but also notices sent by the Court to which a suit is transferred. As these notices had never been sent by the Subordinate Judge, Muktsar, to the parties it was held by the learned Single Judge that the application was in time. In Letters Patent Appeal the question of law was examined and on the basis the following observations of Bhide, J. in Sham Sundar Khushi Ram v. Devi Ditta Mal. AIR 1932 Lah 539, it was concluded that the wording of Article 164 refers to summons issued in the first instance and not to notices issued to parties subsequently whether such notices were necessary under law or not:-"